United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF LABOR, EMPLOYMENT 

STANDARDS ADMINISTRATION, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 14-1445 

Issued: January 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 9, 2014 appellant filed a timely appeal from the April 21, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The last OWCP merit 

decision in this matter was issued on March 22, 2013. Since more than 180 days elapsed since 

March 22, 2013 and the filing of this appeal, and 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.2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 Although appellant initially requested an oral argument before the Board, by letter dated October 29, 2014, she 

withdrew this request. 
2

On appeal, appellant contends that her claim was not updated to note that she continued 

to work after the September 23, 2010 incident, that the statements of accepted facts and 

questions to the referral physicians did not include this fact, that her injury occurred over many 

work shifts as she continued to work after the employment incident, and that OWCP is supposed 

to act as a disinterested arbiter and see that justice is done. 

FACTUAL HISTORY 

This case has previously been before the Board. On September 24, 2010 appellant, then a 

47-year-old claims examiner, filed a traumatic injury claim alleging that she injured her right 

shoulder on September 23, 2010 while sitting at her desk indexing mail. OWCP denied her 

claim, finding that she had not established that her claimed medical condition was related to the 

established employment-related events. However, in a November 27, 2012 decision, the Board 

found that there was a conflict between appellant’s treating physician and the second opinion 

physician with regard to whether she sustained an injury causally related to the accepted 

employment factor, and remanded the case. The facts as set forth in the Board’s prior decision 

are hereby incorporated by reference.3

On remand, OWCP referred appellant to Dr. Harvey L. Seigel, a Board-certified 

orthopedic surgeon, for an impartial medical examination. In a January 18, 2013 report, 

Dr. Seigel found that the diagnosed condition of a herniated disc at C5-C6 and C6-C7 levels 

were not the result of the accepted employment incident. 

In a March 22, 2013 decision, OWCP found that the weight of the evidence was 

represented by Dr. Seigel’s report and affirmed the denial of the claim. 

On January 21, 2014 appellant requested reconsideration. She contended that the factual 

basis of the case was incorrect. Appellant alleged that after her initial injury on September 23, 

2010 she continued to work the next day, and therefore she sustained an occupational injury, not 

a traumatic injury. She claimed this was evidence of an incident that occurred over two shifts. 

Appellant alleged that she did not stop working until September 27, 2010. She attached copies 

of her time sheets in support of her statements. Appellant alleged that these facts required a new 

statement of accepted facts and referred for a new second opinion. She also submitted copies of 

her performance summaries for September 23 and 24, 2010 in support of her reconsideration 

request. 

By decision dated April 21, 2014, OWCP found that appellant’s arguments and evidence 

were not sufficient to warrant a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

 its 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

 3

 Docket No. 12-987 (issued November 27, 2012). 

4

 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he 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

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.5

 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.6 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.7

 The Board has held that the submission of evidence which does not 

address the particular issue involved does not constitute a basis for reopening a case.8 

ANALYSIS 

OWCP denied appellant’s traumatic injury claim as it found that she had failed to 

establish a cervical condition causally related to the September 23, 2010 employment incident. 

Accordingly, the underlying issue was whether she submitted rationalized medical evidence of a 

causal relationship between her cervical condition and the accepted employment incident. 

Appellant did not submit any medical evidence in support of her reconsideration request. Rather, 

she alleged that the employing establishment incorrectly filed a traumatic injury claim on her 

behalf because she continued to work after the September 23, 2010 employment incident for at 

least two days. In support of her argument, appellant submitted time sheets and performance 

summaries for September 23 and 24, 2010. As the time sheets and performance summaries do 

not address causal relationship, they are not relevant on reconsideration.9

Appellant argues a new point of law on reconsideration, i.e., that her claim should have 

been considered as an occupational disease claim. While the reopening of a case may be 

predicated solely on a legal premise not previously considered, such reopening is not required 

unless the legal contention has some connection with the facts of the case.10 Appellant signed 

her traumatic injury claim form. The claim form clearly indicated that an incident occurred on 

September 23, 2010 when she was indexing mail and she felt a sudden pain in her right shoulder. 

Appellant alleged a specific injury resulting from a specific incident on a specific date.11 The 

fact that she continued to work after the incident is irrelevant to the issue of causal relationship. 

 5 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

9 Id. 

10 J.D., Docket No. 14-758 (issued June 26, 2014). 

11 20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other injury caused by a specific event or 

incident within a single workday or shift, whereas an occupational injury is defined as a condition produced in the 

work environment over a period longer than a single workday or shift. 
4

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP or 

constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review on the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 21, 2014 is affirmed. 

Issued: January 15, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board