United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

NATIONAL CREDIT UNION 

ADMINISTRATION, CITY OF 

SCHENECTADY OFFICE, Albany, NY, 

Employer 

__________________________________________ 

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Docket No. 14-367 

Issued: May 9, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 2, 2013 appellant filed a timely appeal from a June 13, 2013 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 June 12, 

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 

and only has jurisdiction over the nonmerit decision. 

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 

On September 11, 2008 appellant, then a 46-year-old federal examiner, filed a traumatic 

injury claim (Form CA-1) alleging that on September 9, 2008 she sustained an injury to her low 

back, neck and shoulder after she twisted while trying to catch a file that was falling off a desk. 

Medical evidence was received. Appellant returned to full-duty work on December 19, 2008. 

By letter dated October 21, 2008, OWCP advised appellant of the deficiencies in the 

evidence and requested that she submit a medical report which contained a physician’s opinion 

supported by objective evidence as to how her employment activities caused, contributed to or 

aggravated any diagnosed condition(s). Further medical evidence was received. 

By decision dated November 25, 2008, OWCP denied the claim on the basis that the 

medical evidence did not establish that her clinical medical conditions were caused by the 

September 9, 2008 incident. The decision noted that appellant’s physician did not address how 

the September 9, 2008 incident was caused or was related to the diagnosed conditions. 

Appellant requested an oral hearing before an OWCP hearing representative, which was 

held by telephone on March 17, 2009. She submitted additional medical evidence. 

By decision dated June 11, 2009, an OWCP hearing representative remanded the case to 

OWCP for further medical development. The hearing representative found that the medical 

evidence submitted did not provide sufficient rationale to establish the claim. OWCP was 

directed to combine the claim with appellant’s prior claims for low back injuries and to refer her 

for a second opinion examination to address whether the September 9, 2008 incident caused an 

injury. 

On remand, OWCP combined this case with claim numbers xxxxxx727, date of injury 

April 13, 1992; case number xxxxxx585, date of injury November 22, 1994; and case number 

xxxxxx509, date of injury July 10, 2002. 

In a September 3, 2009 report, Dr. Edwin Mohler, a Board-certified orthopedic surgeon 

and OWCP referral physician, examined appellant. He reviewed the medical record and 

statement of accepted facts and found that there was no causal relationship between any 

diagnosed conditions and the September 9, 2008 incident. Dr. Mohler advised that the medical 

records dating back to 1992 demonstrated degenerative disc disease by magnetic resonance 

imaging (MRI) scan, disc herniation and congenital spinal stenosis. He opined that the motion 

appellant performed on September 9, 2008 did not rise to a level of a traumatic event or injury. 

Dr. Mohler advised that appellant was able to do her usual job without restrictions. 

By decision dated December 16, 2009, OWCP denied appellant’s claim on the basis that 

the medical evidence failed to establish that her medical conditions were causally related to the 

September 9, 2008 incident. 

On December 4, 2010 and March 4, 2012 appellant requested reconsideration. She 

submitted additional medical evidence from Drs. Deborah Hrustich and Brian Gordon, 

neurosurgeons. By decisions dated March 18, 2011 and June 11, 2012, respectively, OWCP 
3

denied modification of the December 16, 2009 decision on the basis the medical reports 

submitted were insufficiently rationalized to support her claim. 

On June 11, 2013 OWCP received appellant’s June 3, 2013 request for reconsideration. 

Appellant contended that it did not provide a timely decision of her prior request for 

reconsideration. Because OWCP issued a delayed decision on June 11, 2012, it should accept 

her claim. Appellant further contended that her current claim was an exacerbation of her prior 

injuries. She stated that she was asymptomatic prior to the injury, which satisfied the medical 

portion of her claim. Appellant contended that the medical evidence was sufficient to establish 

causal relationship. No additional medical evidence was received. 

By decision dated June 13, 2013, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.3

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.4 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.5 

When a reconsideration decision is delayed beyond 90 days and the delay jeopardizes the 

claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit 

review. That is, the basis of the original decision and any new evidence should be considered 

and, if there is no basis to change the original decision, an order denying modification (rather 

than denying the application for review) should be prepared. There is no obligation to conduct a 

merit review on insufficient evidence if the maximum 180-day time limit for requesting review 

by the Board will have expired within the 90-day period following OWCP’s s receipt of the 

claimant’s reconsideration request.6

 

 2

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606(b)(2). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011); 

M.D., Docket No. 13-1344 (issued November 7, 2013). 
4

ANALYSIS 

Appellant disagreed with OWCP’s June 11, 2012 decision, finding that she did not 

sustain a medical condition causally related to the accepted September 9, 2008 work incident. 

She requested reconsideration. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, she did not advance a relevant legal argument not 

previously considered. In her June 3, 2013 request for reconsideration, appellant argued that 

OWCP did not issue a timely decision on June 11, 2012 and that it should accept her case due to 

this delay. Her March 4, 2012 request for reconsideration was received by OWCP on 

March 13, 2012. On June 11, 2012 OWCP issued a decision denying modification. This is 

within the 90 days generally provided for issuing a reconsideration decision. Further, the 

decision was a merit review. Therefore, appellant’s rights for a merit review on appeal to the 

Board were not jeopardized. However, she did not appeal OWCP’s June 11, 2012 decision to 

the Board. The Board finds, therefore, that appellant’s argument does not establish a legal error 

by OWCP. 

While appellant further contended that her claim is an exacerbation of a preexisting 

condition; but she did not submit any new medical evidence with her reconsideration request. 

The fact that she was asymptomatic prior to the injury is not dispositive of whether her medical 

conditions are causally related to the accepted incident. Medical opinion from a physician is 

needed to establish causal relationship. Lay individuals such as appellant are not competent to 

render a medical opinion.7

 Her contention does not establish a legal error by OWCP. The Board 

further finds that appellant also did not submit relevant and pertinent new evidence with her 

request. 

The Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits of her claim pursuant to the requirements under section 10.606(b)(2). 

OWCP properly denied her June 3, 2013 request for reconsideration.8

 7 Gloria J. McPherson, 51 ECAB 441 (2000). 

8 Robert E. Cullison, 55 ECAB 570 (2004); M.E., 58 ECAB 694 (2007) (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

CONCLUSION 

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

5 U.S.C. § 8128(a).9

 

ORDER 

IT IS HEREBY ORDERED THAT the June 13, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 9, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9

 Appellant submitted new evidence accompanying her request for appeal. The Board may not consider new 

evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the case. 

20 C.F.R. § 501.2(c). Appellant may submit such evidence to OWCP accompanying a request for reconsideration.