United States Department of Labor

Employees’ Compensation Appeals Board

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E.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CITIZENSHIP & IMMIGRATION SERVICES, 

Los Angeles, CA, Employer

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Docket No. 19-0016

Issued: October 20, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 2, 2018 appellant, through counsel, filed a timely appeal from a June 15, 2018 

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

merit decision was a Board decision, dated August 19, 2016, which became final after 30 days of 

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 E.H., Docket No. 15-0312 (issued August 19, 2016). 

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.

4

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

This case has previously been before the Board.5 The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On September 27, 1999 appellant, then a 56-year-old information officer, filed a traumatic 

injury claim (Form CA-1) alleging that on September 24, 1999 she injured her right knee and leg 

when her foot caught and she tripped on boxes while in the performance of duty. OWCP accepted 

the claim for right knee and leg sprain. Appellant intermittently received wage-loss compensation 

on the supplemental and periodic rolls. She received wage-loss compensation on the periodic rolls

from August 1, 2010 until January 15, 2011. 

By decision dated October 31, 2014, an OWCP hearing representative finalized a 

preliminary determination that appellant was at fault in the creation of a $17,806.25 overpayment 

for the period July 31, 2010 through January 15, 2011 because she concurrently received 

retirement benefits from the Office of Personnel Management (OPM) while receiving FECA 

benefits without an appropriate offset. 

On November 24, 2014 appellant appealed to the Board. By decision dated August 19, 

2016, the Board affirmed the October 31, 2014 decision.6 

On August 21, 2017 appellant timely requested reconsideration. In the August 21, 2017 

reconsideration request, in addition to generally challenging the overpayment finding, he provided 

a recitation of the factual history of his case. 

By decision dated June 15, 2018, OWCP denied appellant’s request finding that the 

evidence presented was insufficient to warrant merit review. 

 

4 The Board notes that, following the June 15, 2018 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. 08-2057 (issued July 1, 2009); Docket No. 15-0312 (issued August 19, 2016).

6

Id.
3

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a 

matter of right.7 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.8 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.9

A timely request for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (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.10 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.11

Section 10.440(b) of OWCP’s regulations specifically provides that the only review of a 

final overpayment determination of OWCP is to the Board and that section 8128(a) of FECA does 

not apply to such a final overpayment determination.12

ANALYSIS

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

merits of her claim.

On August 21, 2017 appellant requested reconsideration of the overpayment determination. 

By decision dated June 15, 2018, OWCP denied her request for reconsideration of the merits of 

her claim pursuant to 5 U.S.C. § 8128(a). It found that appellant had not submitted evidence or 

argument warranting such merit review of her claim under the standards of 5 U.S.C. § 8128(a) and 

associated OWCP regulations, including those set forth at 20 C.F.R § 10.606.

Section 10.440(b) of OWCP’s regulations, however, specifically provides that the only 

review of a final overpayment determination of OWCP is to the Board and that 5 U.S.C. § 8128(a) 

 

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.607.

9

Id. at § 10.607(a). 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.

10 Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

11 Id. at § 10.608.

12 Id. at § 10.440(b).
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does not apply to such a final overpayment determination.13 The Board finds that OWCP erred in 

applying 5 U.S.C. § 8128(a) and its associated regulations in its June 15, 2018 decision. Therefore, 

the Board shall modify OWCP’s June 15, 2018 decision denying appellant’s request for 

reconsideration of the merits of her claim to reflect that the basis of the denial was not her failure 

to meet the standards of 5 U.S.C. § 8128(a), but rather because 5 U.S.C. § 8128(a) does not apply 

to a final overpayment determination of OWCP.14

CONCLUSION

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

merits of her claim.

ORDER

IT IS HEREBY ORDERED THAT the June 15, 2018 decision of the Office of Workers’

Compensation Programs is affirmed, as modified. 

Issued: October 20, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

13 See id.

14 See P.J., Docket No. 19-1479 (issued May 8, 2020).