United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

SOCIAL SECURITY ADMINISTRATION, 

Atlanta, GA, Employer 

__________________________________________ 

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Docket No. 14-50 

Issued: May 1, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 15, 2013 appellant filed a timely appeal of the August 5, 2013 decision of the 

Office of Workers’ Compensation Programs (OWCP) which denied her request for 

reconsideration. Because more than 180 days elapsed from the most recent merit decision dated 

March 5, 2013 to the filing of this appeal on October 15, 2013, the Board lacks jurisdiction to 

review the merits of the claim pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On August 29, 2012 appellant, then a 58-year-old legal assistant, filed an occupational 

disease claim, alleging that she developed tenderness and swelling of the right knee after being 

 1

 5 U.S.C. §§ 8101-8193. 
2

relocated to an office with a low desk and her knee was forced into an extended position. She 

became aware of her condition and realized it was causally related to her employment on 

August 16, 2012. Appellant did not stop work. 

Appellant was treated by Dr. Tedman Vance, a Board-certified orthopedist, on 

August 24, 2012 for right knee pain. Dr. Vance noted an onset of pain one and a half weeks 

prior. Appellant reported no injury but noted that her pain was aggravated by bending, climbing 

stairs and walking. She also submitted a position description for a legal assistant. 

On October 17, 2012 OWCP advised appellant of the evidence needed to establish her 

claim. It requested that she submit a physician’s reasoned opinion addressing the relationship of 

her right knee condition to specific work factors. 

In an November 20, 2012 statement, appellant requested to withdraw her claim. She 

noted that, after speaking with her physician, she was informed that the desk she occupied 

aggravated her condition and that her desk was an ergonomic misfit. In a November 12, 2012 

report, Dr. Vance treated appellant for right hand pain. Appellant reported a trauma at work and 

noted that the pain worsened because she could not avoid the demands of her job. Dr. Vance 

diagnosed benign essential tremor, osteoarthrosis of the hand, tenosynovitis of the hand and wrist 

and pain of the hand and forearm. 

On December 11, 2012 OWCP denied appellant’s claim finding that the medical 

evidence did not establish that her right knee condition was causally related to the accepted 

work-related events. 

On December 31, 2012 appellant requested reconsideration. She submitted reports from 

Dr. Vance dated December 6 to 26, 2012. Dr. Vance treated her for right knee pain beginning 

six days prior. Appellant reported no trauma. Dr. Vance diagnosed effusion and pain of the 

lower leg joint with possible early arthritis. Appellant submitted a December 12, 2012 magnetic 

resonance imaging (MRI) scan of the right knee which revealed a radial tear of the medial 

meniscus, edema representing a partial tear or sprain of the medial patellar of the medial patellar 

retinaculum and edema involving the medial articular cartilage of the patella. 

In a March 5, 2013 decision, OWCP denied modification of the December 11, 2012 

decision. 

In a June 26, 2013 appeal request form, appellant requested reconsideration. She stated 

that her initial report of right knee pain included complaints of sitting at a low desk. Appellant 

noted that Dr. Vance’s diagnosis was arthritis and she attempted to stop the processing of her 

claim because she thought the diagnosis was not consistent with her injury. The pain in her right 

leg did not start until she occupied a desk that was ergonomically unsuitable for her. Appellant 

advised that, after Dr. Vance received further medical information on the cause of her elevated 

pain level, she had right knee surgery. She noted that a medical report was attached; however, 

no additional medical evidence was received into the record. Appellant submitted five “desk 

injury photos” but the image quality is poor and essentially not viewable. 

In an August 5, 2013 decision, OWCP denied appellant’s request for reconsideration. It 

found that the evidence submitted was insufficient to warrant further merit review. 
3

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion 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 his or his written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

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

or 

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

or 

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

by OWCP.”3

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.4

ANALYSIS 

OWCP denied appellant’s claim on the grounds that she failed to provide sufficient 

medical evidence to establish that her right knee condition was causally related to her work 

duties. It denied her reconsideration request without a merit review. 

The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), 

requiring OWCP to reopen the case for review of the merits of the claim. In her request for 

reconsideration, she did not contend that OWCP erroneously applied or interpreted a specific 

point of law. Appellant did not identify a specific point of law or show that it was erroneously 

applied or interpreted. She did not advance a new and relevant legal argument. In her June 26, 

2013 request, appellant noted that her right knee pain pertained to sitting at a low desk. She 

stated that the pain in her right leg did not start until she occupied a desk that was ergonomically 

unsuitable for her. Appellant also reported that Dr. Vance performed right knee surgery. These 

assertions do not show a legal error by OWCP or constitute a new and relevant legal argument. 

The underlying issue in this case is whether appellant’s diagnosed condition is causally related to 

her workplace exposures. That is a medical issue which must be addressed by relevant new 

medical evidence.5

 Appellant did not submit any new or relevant medical evidence in support of 

her claim. She indicated that a medical report was submitted with her request but no additional 

medical evidence was received. 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606(b)(2). 

4 Id. at § 10.608(b). 

5 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

Appellant submitted five “desk injury photos” which contained images of poor quality of 

her desk area. As noted, the underlying issue in this claim is whether the medical evidence 

establishes that her claimed condition was caused or aggravated by workplace exposures. The 

photographs are not relevant to the underlying medical issue. Therefore, this evidence is 

insufficient to warrant reopening the case for a merit review. 

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

§ 10.606(b)(2). 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 submit 

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 denied appellant’s request for reconsideration. 

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board