United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.V., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Cheyenne, WY, Employer 

__________________________________________ 

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Docket No. 14-1263 

Issued: October 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 6, 2014 appellant filed a timely appeal from a January 6, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying her request for further 

merit review. As more than 180 days elapsed from the last merit decision of November 14, 2012 

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 claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated April 22, 2011, the 

Board reversed OWCP’s September 15, 2009 decision terminating appellant’s medical benefits 

effective May 1, 2009. The Board found that the opinion of Dr. Jeffrey J. Sabin, a Boardcertified orthopedic surgeon and the impartial medical specialist, was equivocal and 

unrationalized on the issue of whether appellant had continuing residuals of the accepted workrelated injuries of right shoulder strain, cervical strain and thoracic strain and whether further 

treatment or therapy was warranted.2

By decision dated November 14, 2012, the Board affirmed OWCP’s March 2, 2012 

decision finding that appellant had failed to establish entitlement to intermittent wage-loss 

compensation for the periods March 29 to December 21, 2009, January 3 to December 25, 2010 

and January 3 to June 4, 2011.3 The law and facts of the previous Board decisions are 

incorporated herein by reference. Appellant retired from the employing establishment on 

June 1, 2011. 

In a November 4, 2013 letter, received by OWCP on November 14, 2013, appellant 

requested reconsideration. She argued that she provided evidence of her on-going symptoms and 

need for medical treatment and gym exercises. Appellant referenced her current medical 

treatment and requested that OWCP reimburse her for the 13 years of time, travel and money of 

trying to attain medical and manageable relief from her allegations of constant and continued 

spasms, muscle pain and lack of enjoyment she experiences. She included copies of referrals to 

physical therapy as well as copies of physical therapy reports from July through October 2013. 

In a June 26, 2013 report, Dr. Dale R. Martin, a Board-certified orthopedic surgeon, 

noted the history of the October 2000 work injury and that appellant stated that she has never 

gained relief from her continuous subjective pain complaint and intermittent recurrent spasm. 

He reported no objective findings of shoulder internal derangement or labral tears. There were 

cervical disc protrusions and some spondylosis. Dr. Martin diagnosed chronic periscapular 

myofascial pain and found nothing of a surgical nature or anything treatable orthopedically 

regarding her shoulder. He recommended a physiatrist’s perspective. In a separate letter dated 

June 26, 2013 to Dr. Brooke Bennis, an osteopath and Board-certified physiatrist, Dr. Martin 

reiterated that appellant has a 13-year history of chronic periscapular myofascial pain and that his 

evaluation did not indicate anything of an orthopedic nature. 

In a July 16, 2013 report, Dr. Bennis noted the history of the October 2000 work injury 

and presented examination findings as well as a review of the medical evidence. He assessed 

facet joint cervicalgia at the levels of C4-5 through C7-T1 on right side; cervical degenerative 

disc disease; right shoulder pain; right shoulder impingement; right glenohumeral joint 

degeneration; myofasical pain syndrome in the right parascapular region; scapular dyskinesia 

 2

 Docket No. 10-1026 (issued April 22, 2011). On October 6, 2000 appellant, a senior associate advocate, slipped 

and fell on an icy surface while walking toward the entrance of her workplace. She lost intermittent time from work 

and received wage-loss compensation. Appellant returned to full duty without restrictions in August 2002. 

3

 Docket No. 12-997 (issued November 14, 2012). 
3

and subjective insomnia. Dr. Bennis provided appellant with a right subacromial injection and 

prescribed physical therapy. 

In an October 23, 2013 report, Dr. Alicia Feldman, a Board-certified physiatrist, noted 

that appellant was last seen on August 27, 2013 and since then had been undergoing physical 

therapy. She assessed neck and scapular pain and myofasical pain. Appellant was advised to 

return to the clinic as needed and may benefit from trigger point injections. Dr. Feldman also 

prescribed Lidoderm patches. 

By decision dated January 6, 2014, OWCP denied reconsideration without reviewing the 

merits of the case. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits of the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”5

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.6

ANALYSIS 

The underlying issue on reconsideration is whether appellant has submitted sufficient 

evidence relevant to the issue of compensation for intermittent wage loss for the periods 

March 29 to December 21, 2009, January 3 through December 25, 2010 and January 3 through 

June 4, 2011. Appellant’s November 4, 2013 request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Consequently, she was not entitled to a review of the merits based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(2). 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b). 

6 Id. at § 10 608(b). 
4

The Board further finds that appellant did not provide any relevant or pertinent new 

evidence warranting the reopening of the case on the merits. Medical evidence and physical 

therapy reports from 2013 showed ongoing symptoms related to the right shoulder. This 

evidence, while new to the present claim, is not relevant to the claimed periods of lost wages 

from work for the periods in 2009, 2010 and 2011. Thus, this information is insufficient to 

reopen appellant’s claim for further merit review.7

 

The Board also finds that appellant did not show that OWCP erroneously interpreted a 

specific point of law, advance a relevant legal argument not previously considered or submit 

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

meet any of the regulatory requirements and OWCP properly declined to reopen her claim for 

further merit review.8 

On appeal, appellant contends that she has continued to substantiate the need for medical 

treatment and physical and massage therapy and independent exercise. However, her claim 

remains open for medical treatment. Appellant bears the burden of proof to establish entitlement 

to wage-loss compensation. As noted, evidence of continuing medical treatment in 2013 due to 

the accepted injury is irrelevant to wage-loss claims in 2009, 2010 and 2011. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 

5 U.S.C. § 8128(a). 

 7

 OWCP properly noted that appellant’s file remained open for medical treatment of the accepted diagnoses for 

right shoulder strain, cervical strain and thoracic strain. 

8 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the 

case for a review on the merits). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 27, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board