United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CITIZENSHIP & IMMIGRATION 

SERVICES, Houston, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-1295

Issued: August 10, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 15, 2020 appellant filed a timely appeal from a March 5, 2020 nonmerit decision 

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

from OWCP’s last merit decision, dated June 28, 2019, 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 her claim pursuant to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 23, 2018 appellant, then a 30-year-old asylum officer, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she and her coworkers were involved in a motor 

vehicle collision (MVC) and sustained injuries, including bruising from her seatbelt, while in the 

performance of duty. She noted that she was transported to a hospital via ambulance. Appellant 

stopped work that day.

In an April 23, 2018 e-mail, the employing establishment documented that appellant and 

her coworkers were involved in an MVC that day.

In an April 23, 2018 Texas workers’ compensation work status report, Dr. Roy Kendrick, 

a family medicine specialist, noted a diagnosis of an “MVC.”

In a development letter dated April 30, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the necessary evidence. No response was received.

By decision dated May 31, 2018, OWCP accepted that the April 23, 2018 employment 

incident occurred as alleged, but denied appellant’s traumatic injury claim, finding that she had 

not submitted medical evidence containing a diagnosis in connection with the accepted 

employment incident. Thus, it concluded that the requirements had not been met to establish an 

injury as defined by FECA.

An April 23, 2018 discharge instruction sheet noted that appellant was involved in an MVC 

and was treated by Dr. Kendrick. It further noted that she was discharged with follow-up 

instructions after receiving a tetanus shot.

In an April 23, 2018 medical report, Cristina Pacheco, a registered nurse, noted that 

appellant was involved in an MVC and had no neck or back pain. She indicated that she presented 

with a headache, but that she always had headaches.

An April 23, 2018 x-ray of the cervical spine was unremarkable. An x-ray of the pelvis of 

even date also demonstrated no acute fracture.

In an April 23, 2018 medical report, an unidentifiable healthcare provider conducted a 

physical examination, which revealed a small abrasion on the right clavicle.

On April 1, 2019 appellant requested reconsideration.

By decision dated June 28, 2019, OWCP denied modification of its prior decision.

On September 5, 2019 appellant requested reconsideration and resubmitted the copies of 

the April 23, 2018 work status report from Dr. Kendrick, as well as the discharge instruction sheet 

of even date. In an August 22, 2019 statement, she asserted that the medical evidence of record 

showed that she was evaluated in the hospital as a result of a work-related MVC. Appellant also 
3

noted that her coworkers, who were involved in the same MVC, were approved for their workers’

compensation benefits and argued that she should, therefore, be compensated.

By decision dated March 5, 2020, OWCP denied merit review of appellant’s claim 

pursuant to 5 U.S.C. § 8128(a).

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

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, she has not advanced a relevant legal argument not previously 

considered. Appellant argued that she should be compensated because she was evaluated in the 

hospital as a result of a work-related MVC and her coworkers, who were involved in the same 

 

2

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

3 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); 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 (iFECS). 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); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
4

MVC, were approved for their workers’ compensation benefits. The Board finds, however, that 

these arguments are not relevant to the underlying issue of the present case, i.e., whether appellant 

submitted medical evidence containing a medical diagnosis in connection with her accepted 

employment incident. The Board has held that the submission of evidence or argument, which 

does not address the particular issue involved does not constitute a basis for reopening a case.7 

Therefore, the submission of these arguments do not require reopening of appellant’s case on the 

merits. Consequently, appellant is not entitled to a review of the merits of her claim based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

Further, appellant has not provided relevant and pertinent new evidence in support of her

request for reconsideration. On reconsideration she resubmitted the April 23, 2018 report from

Dr. Kendrick, as well as the discharge instruction sheet of even date. 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 and, thus, this report is also 

insufficient to warrant a merit review.9 As these reports were previously considered and reviewed 

by OWCP in its prior decision, appellant is not entitled to a merit review based on the third 

requirement under 20 C.F.R. § 10.606(b)(3).10

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 her request for reconsideration of the merits

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

 

7

I.M., Docket No. 19-1189 (issued November 16, 2020); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8 See M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

9 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); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10 D.L., Docket No. 18-0449 (issued October 23, 2019).

11 D.M., supra note 9.; 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).
5

ORDER

IT IS HEREBY ORDERED THAT the March 5, 2020 nonmerit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: August 10, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board