United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

NATIONAL AERONAUTICS & SPACE 

ADMINISTRATION, GODDARD SPACE 

FLIGHT CENTER, Greenbelt, MD, Employer 

__________________________________________ 

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Docket No. 14-825 

Issued: September 4, 2014 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 28, 2014 appellant, through his attorney, filed a timely appeal of a 

February 21, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying his request for reconsideration. As more than 180 days elapsed from issuance 

of the last merit decision of November 30, 2012 to the filing of this appeal, the Board has no 

jurisdiction over the merits of the case pursuant to the Federal Employees’ Compensation Act1

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for merit 

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

 1

 5 U.S.C. §§ 8101-8193. 

2

 20 C.F.R. § 501.3(e). 
2

On appeal, appellant’s attorney asserts that OWCP did not analyze relevant, new legal 

arguments presented on reconsideration. 

FACTUAL HISTORY 

On September 11, 2012 appellant, then a 54-year-old wheelchair-bound satellite 

communications engineer, filed a traumatic injury claim alleging that he broke his leg on 

September 4, 2012 when he fell from his wheelchair while exiting an employing establishment 

taxi. He stopped work that day and did not return. 

The medical evidence of record reveals that appellant, who has muscular dystrophy, was 

admitted to the hospital from the emergency room on September 4, 2012 where a comminuted 

mildly displaced fracture of the right femur was diagnosed. On September 10, 2012 he 

underwent open reduction internal fixation of the fracture and was transferred to a skilled nursing 

facility on September 19, 2012. 

In letters dated October 25, 2012, OWCP informed appellant of the evidence needed to 

support his claim. It also requested that the employing establishment respond regarding the 

circumstances of the injury. 

In correspondence dated November 9, 2012, Myrtis Coggins, an injury compensation 

specialist, advised that appellant was on the premises of the employing establishment at the time 

of injury. Appellant’s scheduled tour of duty was 8:00 a.m. to 4:30 p.m. and that, by their 

records, the injury occurred at approximately 9:20 a.m. on September 4, 2012. In regard to 

whether appellant was in the performance of duty, Ms. Coggins stated that he had returned to 

work that day after an absence of approximately six months. Before reporting to his workstation 

in Building 25, he first went to Building 1 to gather some information and then to Building 21. 

He had not yet reported to his supervisor to receive a new work assignment. Ms. Coggins related 

that appellant was riding in a government-owned vehicle for wheelchair transportation when the 

injury occurred. 

In a November 25, 2012 narrative statement, appellant noted that since the accident he 

was home-bound and virtually bedridden. He stated that his time card showed that he was in pay 

status throughout his time at the employing establishment prior to his accident on 

September 4, 2012. Appellant arrived at work at 7:55 a.m. and first visited human resources in 

Building 1 and spoke with someone about his absence. He then entered an employing 

establishment vehicle to travel to Building 21 to renew overdue library books that he used in his 

job as a satellite communications engineer. Building 21 also contained a credit union and 

cafeteria and he would have also visited those but for the accident. The driver who took him to 

Building 21 failed to properly deploy the wheelchair ramp which caused his wheelchair to drop, 

throwing him to the sidewalk where he broke his right femur. On November 29, 2012 appellant 

filed a claim for compensation commencing December 10, 2012. The employing establishment 

noted that he received continuation of pay from September 5 to October 19, 2012 and sick leave 

thereafter. 
3

By decision dated November 30, 2012, OWCP denied appellant’s claim. It found that, by 

going to Building 21 to return library books prior to reporting to work, he deviated from his 

employment and was not in the performance of duty when injured. 

On November 25, 2013 appellant, through his attorney, requested reconsideration. He 

contended that he did not deviate from duty on September 4, 2012 when injured on the 

employing establishment premises. Appellant asserted that coverage extended to a reasonable 

interval before or after the work shift while the employee was on the premises and engaged in 

preparatory or incidental acts. Counsel noted that appellant was injured after the start of his 

work shift and on the employing establishment premises. After leaving human resources to 

review his personnel file, appellant went to the library in Building 21 on employing 

establishment premises, to renew technical manuals that he had used in his work. He was injured 

on exiting from the employing establishment vehicle upon arrival at Building 21. Counsel 

argued that, even though the manuals were not required, the employing establishment would 

derive a benefit from appellant’s use of the two technical manuals.3

 Appellant noted that he 

would have also used the cafeteria in Building 21, which would be related to personal 

ministration and within the course of employment. 

In a decision dated February 21, 2014, OWCP denied appellant’s request for 

reconsideration. It found the evidence and argument cumulative, that he submitted duplicates of 

statements previously submitted. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.4 Section 10.608(a) of the Code of Federal Regulations (C.F.R.) 

provides that a timely request for reconsideration may be granted if OWCP determines that the 

employee has presented evidence and/or argument that meet at least one of the standards 

described in section 10.606(b)(3).5 This section provides that the application for reconsideration 

must be submitted in writing and 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.6

 Section 10.608(b) provides that, when a 

request for reconsideration is timely but fails to meet at least one of these three requirements, 

OWCP will deny the application for reconsideration without reopening the case for a review on 

the merits.7

 

 3

 The attorney attached title pages of the two manuals: “Bayesian Reliability Analysis” and “Practical Electronic 

Reliability Engineering.” 

4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.608(a). 

6 Id. at § 10.606(b)(3). 

7 Id. at § 10.608(b). 
4

ANALYSIS 

The only decision before the Board in this appeal is the decision of OWCP dated 

February 21, 2014 denying appellant’s application for review. Because more than 180 days 

elapsed from the date of OWCP’s merit decision of November 30, 2012 to the filing of this 

appeal with the Board on February 28, 2014, the Board lacks jurisdiction to review the merits of 

this claim.8 

On September 4, 2012 appellant sustained a fracture of the right femur when he fell from 

a wheelchair ramp as he was exiting an employing establishment vehicle on the premises of the 

employing establishment. He underwent corrective surgery on September 10, 2012 and was 

transferred to a skilled nursing facility on September 19, 2012.9

 Appellant, who had been absent 

from work for approximately six months, reported to work that day at Building 1, where he 

visited human resources then left to go to Building 21, to visit the library where he was going to 

renew manuals he used in his work and to visit the cafeteria. OWCP denied the claim on 

November 30, 2012, finding that he deviated from duty before work that day because he was 

going to the library to renew books. 

Appellant, through his attorney, requested reconsideration on November 25, 2013. The 

attorney argued that appellant was in the performance of duty when injured on September 4, 

2012, noting that the books he was renewing were technical manuals that he used in his work and 

also indicating that he would also visit the cafeteria for a personal break. 

The Board finds that appellant through counsel, has advanced legal arguments that are 

relevant, not previously considered and pertinent to the issue of whether he was in the 

performance of duty on September 4, 2012 when injured. On reconsideration appellant’s 

attorney asserted that appellant did not deviate from duty on September 12, 2012 when he 

travelled from Building 1, where he visited human resources, to Building 21, where he was 

injured. As noted in Ms. Coggins’ statement, there is no question that appellant was on 

employing establishment premises, travelling in an employing establishment vehicle when the 

accident occurred. Appellant fell from the wheelchair ramp and broke his right femur. The facts 

in this case indicate that Building 21 housed the library, credit union and cafeteria. Counsel 

asserted that, even though appellant was not required to use the technical manuals he was going 

to renew at the library his employer would derive substantial a benefit. He further asserted that 

employment injuries that occurred during personal ministrations were within the performance of 

duty, maintaining that appellant also intended to visit the cafeteria. As noted, these legal 

arguments are relevant to the determination of whether appellant was in the performance of duty. 

OWCP did not specifically address either of these contentions in the prior adjudication of his 

claim. 

 8 See supra note 1. 

9

 The record does not contain an accident report describing the specific circumstances of the September 4, 2012 

incident and does not indicate whether appellant returned to work. 
5

As appellant has advanced a legal argument not previously considered by OWCP. He is 

entitled to a review of the merits of his claim under section 10.606(b)(2) of OWCP’s 

regulations.10 The case will be remanded for this purpose. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for a merit review 

pursuant to section 8128(a) of FECA.

ORDER 

IT IS HEREBY ORDERED THAT the February 21, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this decision of the Board. 

Issued: September 4, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 20 C.F.R. § 10.606(b)(2); see T.F., Docket No. 10-1701 (issued May 3, 2011).