United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.O., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1015 

Issued: September 8, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On March 31, 2014 appellant, through counsel, filed a timely appeal from a March 3, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her 

request for reconsideration. Because more than 180 days elapsed between the last merit decision 

dated August 15, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the 

merits of appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that, following the March 3, 2014 decision, OWCP received additional evidence. However, the 

Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. 

§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 

389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
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). 

On appeal counsel argues that the decision is contrary to fact and law. 

FACTUAL HISTORY 

On April 16, 2001 appellant, then a 49-year-old group secretary, filed an occupational 

disease claim alleging that in August 2000 she first became aware that her right wrist, arm and 

hand condition was due to her employment duties. OWCP accepted the claim for right thumb 

tendinitis, which was later expanded to include right bicipital tendinitis, right forearm tendinitis, 

right de Quervain’s tendinitis, right lateral epicondylitis, bilateral carpal tunnel syndrome, right 

shoulder region localized primary osteoarthritis and calcium deposit in right tendon and bursa. It 

authorized right carpal tunnel surgery, which was performed on July 27, 2004. 

In a January 8, 2013 report, Dr. Thomas J. O’Laughlin, a treating Board-certified 

physiatrist with a subspecialty in pain medicine, provided physical examination findings and 

diagnosed cervical myelopathy, cervical stenosis and multilevel degenerative disc changes. He 

provided a medical history and attributed appellant’s cervical condition to her repetitive work 

duties. In concluding, Dr. O’Laughlin determined that appellant was disabled from working as 

her work “contribute[s] to further neurologic decline and disability.” 

On May 25, 2013 OWCP received appellant’s claims for wage-loss compensation (Form 

CA-7) for the period December 30, 2012 to March 9, 2013.3 

By letter dated June 14, 2013, OWCP informed appellant that the evidence of record was 

insufficient to support her claim for wage-loss compensation for period December 30, 2012 to 

March 23, 2013. She was advised as to the type of medical and factual evidence required to 

establish her claim and given 30 days to provide this information. No evidence was submitted. 

By decision dated August 15, 2013, OWCP denied appellant’s claim for wage-loss 

compensation for the period December 30, 2012 to March 23, 2013. 

Subsequent to the denial of appellant’s claim for wage-loss compensation, OWCP 

received additional medical evidence including progress notes from Dr. O’Laughlin for the 

period August 6 through January 21, 2014 detailing physical findings. 

On February 18, 2014 appellant’s counsel requested reconsideration and submitted an 

October 16, 2013 report by Dr. Randi A. Galli, an examining Board-certified plastic surgeon, in 

support of her request. Dr. Galli reported that appellant had reached maximum medical 

improvement and completed treatment. He then stated that the report was reimbursable and gave 

reasons for this conclusion. 

 3

 In attached Time Analysis Forms, the period indicated was December 30, 2012 to March 23, 2013. 
3

By decision dated March 3, 2014, OWCP denied reconsideration. 

LEGAL PRECEDENT 

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

OWCP’s regulations provide that 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.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

 

ANALYSIS 

OWCP accepted appellant’s claim for right thumb tendinitis, right forearm tendinitis, 

right de Quervain’s tendinitis, right lateral epicondylitis, bilateral carpal tunnel syndrome, right 

shoulder region localized primary osteoarthritis and calcium deposit in right tendon and bursa. 

Appellant filed claims for wage-loss compensation for the period December 30, 2012 to 

March 23, 2013, which OWCP denied by decision dated August 15, 2013. The Board finds that 

the refusal of OWCP to reopen appellant’s case for further consideration of the merits of her 

claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an abuse of discretion. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In her February 18, 2014 application for reconsideration, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law. She did not advance a 

pertinent new and relevant legal argument. A claimant may obtain a merit review of an OWCP 

decision by submitting pertinent new and relevant evidence. In this case, however, appellant 

failed to submit any pertinent new and relevant evidence addressing her disability from work for 

the claimed period December 30, 2012 to March 23, 2013. 

In support of her request for reconsideration, appellant submitted an October 16, 2013 

report from Dr. Galli. OWCP also received progress notes for the period August 6 through 

January 21, 2014 from Dr. O’Laughlin. While these reports are new, they are not relevant to 

establishing her disability from work for the claimed period. In this regard, Dr. Galli’s 

October 16, 2013 report notes that appellant had reached maximum medical improvement and 

 4

 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that [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

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

6 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
4

stated his report was reimbursible. It did not address the issue of employment-related disability. 

Dr. O’Laughlin’s progress notes contain physical findings, but offer no opinion on disability for 

the period claimed by appellant. Similarly, his progress notes provided physical findings, but 

offer no opinion as to appellant’s disability for the period in question. The submission of 

evidence that does not address the relevant issue involved does not constitute a basis for 

reopening a case.8

 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). 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 of 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 March 3, 2014 is affirmed. 

Issued: September 8, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 8 M.E., 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 642 (2006).