United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

CENTRAL INTELIGENCE AGENCY, 

Vienna, VA, Employer 

__________________________________________ 

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Docket No. 14-1960 

Issued: February 19, 2015 

Appearances: Case Submitted on the Record

Stephen D. Scavuzzo, Esq., for the appellant 

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 September 9, 2014 appellant, through counsel, filed a timely appeal from a March 14, 

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

request for reconsideration without conducting a merit review. Pursuant to the Federal 

Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over this nonmerit decision. Because more than 180 days has elapsed from issuance 

of OWCP’s most recent merit decision dated December 17, 2012, to the filing of this appeal on 

September 9, 2014, the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

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

under 5 U.S.C. § 8128(a) without further merit review. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 4, 2011 appellant, then a 56-year-old project manager/senior staff officer, 

filed a traumatic injury claim alleging that on October 25, 2010 she sustained a back injury. She 

alleged that she fell while she was turning away from a copy machine, landing on her back. 

Appellant did not stop work. 

By letter dated November 11, 2011, OWCP notified appellant that evidence was 

insufficient to establish her claim because no medical evidence had been received. It advised her 

of the type of evidence required and advised her to complete a questionnaire to establish the 

factual basis of her claim. 

In a November 16, 2010 report, Dr. Steven Hughes, a Board-certified orthopedic surgeon, 

noted that appellant complained of left arm and hand numbness, tingling, and weakness. On 

physical examination of the cervical spine, he found no palpitation tenderness, no malalignment, 

and 75 percent restricted active range of motion. Dr. Hughes advised that an x-ray of the 

cervical spine revealed moderate osteoarthritis and he diagnosed displaced cervical disc. He 

opined that appellant’s condition was possibly related to an incident occurring when she lost her 

balance and fell flat on her back. 

In a January 26, 2011 report, Dr. Hughes noted that appellant complained of upper back, 

neck, and left shoulder pain. He further noted that appellant described her pain as moderately 

severe, intermittent, dull, and aching. Dr. Hughes advised that a magnetic resonance imaging 

(MRI) scan of the cervical spine revealed multilevel degenerative disc disease with associated 

disc bulges, disc osteophyte complex and formation, severe left side impingement at C3-4, C4-5, 

and C5-6 levels with moderate central canal stenosis at C5-6. 

In a November 28, 2011 statement, appellant advised that she was at a work sponsored 

course in West Virginia when she fell on her back as she turned away from a copy machine. She 

stated that she did not take a step and that there was nothing in her path on the floor that caused 

her fall. Appellant noted that she had continued to work, despite her condition, with only 

intermittent absences. 

By decision dated December 12, 2011, OWCP denied appellant’s claim because the 

medical evidence was insufficient to establish that the work incident caused appellant’s 

diagnosed condition. 

By letter dated October 25, 2012, appellant requested reconsideration. She provided an 

October 22, 2012 report from Dr. Suzanne Wittig, Board-certified in internal medicine, who 

noted that appellant complained of neck pain and stiffness that radiated to her shoulder. 

Dr. Wittig advised that appellant’s injury occurred following a fall at work in October 2010. She 

advised that appellant did not have a neck problem prior to the incident and diagnosed cervical 

abnormality. 

By decision dated December 17, 2012, OWCP denied modification of its December 12, 

2011 decision. It found that Dr. Wittig’s report did not contain medical rationale regarding 

causal relationship. OWCP advised appellant that to establish her claim, she must submit 

reasoned medical evidence establishing causal relationship. 
3

By letter dated December 8, 2013, appellant requested reconsideration through her 

attorney. Her attorney argued that OWCP’s decision was in error because the medical evidence 

referenced an MRI scan that showed nerve impingement and also because the medical evidence 

indicated that appellant had no neck pain prior to the injury date. Counsel argued that these two 

facts taken together showed that appellant’s symptoms were caused by the work incident. 

By decision dated March 14, 2014, OWCP denied appellant’s request for reconsideration 

without a merit-review because appellant failed to submit any new relevant evidence or legal 

contentions warranting further merit review. 

LEGAL PRECEDENT 

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

 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.3 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.4

ANALYSIS 

In a December 17, 2012 merit decision, OWCP denied appellant’s request for 

reconsideration finding that the medical evidence did not did not establish that the October 25, 

2010 employment incident caused or aggravated her back and neck condition. Appellant 

submitted a timely request for reconsideration on December 8, 2013, which was denied without a 

merit review. 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

without further merit review. On reconsideration, her attorney argued that causal relationship 

was established by medical evidence that showed nerve impingement and the fact that 

appellant’s physician noted that she had no neck pain prior to the injury. The Board has also 

held that an opinion that a condition is causally related to an employment injury because the 

employee was asymptomatic before the injury, but symptomatic after, it is insufficient without 

supporting rationale to establish causal relationship.5

 Consequently, this assertion does not show 

that OWCP erroneously applied or interpreted a specific point of law, nor does it advance a 

relevant legal argument not previously considered. 

 2

 20 C.F.R. § 10.606(b)(2). 

3 Id. at § 10.607(a). 

4 Id. at § 10.608(b). 

5 Thomas D. Petrylak, 39 ECAB 276 (1987). 
4

Furthermore, appellant did not submit relevant evidence not previously considered by 

OWCP. OWCP explained in its December 17, 2012 merit decision that additional medical 

evidence was needed to establish the claim. However, appellant did not submit any new medical 

evidence. While she offered her argument for why she believed her claim should be accepted, 

the underlying issue in the claim, causal relationship, is medical in nature. Because appellant 

failed to satisfy any of the three regulatory criteria for reopening a claim, she was not entitled to 

further merit review of her claim. 

Appellant’s attorney contends on appeal that OWCP’s decision was in error because the 

medical evidence was sufficient to establish the claim. However, the Board does not have 

jurisdiction over the merits of the claim. As explained above, appellant’s argument on 

reconsideration was insufficient to warrant a merit review of the claim. Therefore, OWCP 

properly denied her application for reconsideration. 

CONCLUSION 

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

review. 

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 19, 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