United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Concord, NH, Employer 

__________________________________________ 

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Docket No. 16-0212 

Issued: February 3, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 5, 20151 appellant filed a timely appeal of a May 13, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed since the last merit decision on December 18, 2014 to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.3

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from May 13, 2015, the date of OWCP’s last decision was 

November 9, 2015. Since using November 16, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is November 5, 2015, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 On appeal, appellant has submitted additional evidence. The Board’s jurisdiction is limited to review of 

evidence that was before OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s application for 

reconsideration was insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 1, 2014 appellant, then a 64-year-old human resources assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on July 17, 2014 he injured his back and neck 

in the performance of duty. He reported that he was walking during lunch time and fell on the 

sidewalk, hitting his back and neck. Appellant submitted a form report (Form CA-20) dated 

September 9, 2014 from Dr. Thomas Duttmacher, a family practitioner. Dr. Duttmacher 

provided a history of a trip and fall on a sidewalk, with a diagnosis of diabetes mellitus. The 

record also contains a note dated October 29, 2014 from Dr. Duttmacher reporting that appellant 

was being treated for a back injury on July 17, 2014. Appellant submitted a claim for 

compensation (Form CA-7) from August 1 to September 2, 2014. 

In a letter to appellant dated November 18, 2014, OWCP noted that it was unclear if he 

was in the performance of duty at the time of the alleged employment incident. It advised him 

that the evidence did not establish that he experienced the incident alleged to have caused injury. 

In addition, there was no medical evidence with a firm diagnosis and an opinion on causal 

relationship with employment. OWCP included a questionnaire with respect to the factual 

circumstances regarding the incident, the filing of the claim, and the medical treatment. 

Appellant was advised to submit additional evidence within 30 days. OWCP also requested in a 

November 18, 2014 letter that the employing establishment submit information regarding the 

alleged July 17, 2014 employment incident. 

Appellant responded in a November 25, 2014 letter that on July 17, 2014 he was on his 

lunch break and walking in the parking lot on the employing establishment premises when he 

tripped and fell. On December 3, 2014 OWCP received a response from the employing 

establishment confirming that the July 17, 2014 incident occurred during a lunch break on the 

employing establishment premises. 

By decision dated December 18, 2014, OWCP denied the claim for compensation. It 

found there was no medical evidence with a firm diagnosis in connection with the employment 

incident. 

On April 27, 2015 appellant submitted a request for reconsideration. He stated that he 

needed a referral to a physician, a Dr. Pizzarello. The record also contains a memorandum of 

telephone call (Form CA-110) indicating that appellant had left a voice mail on April 27, 2015 

requesting a referral letter. 

By decision dated May 13, 2015, OWCP found the reconsideration request was 

insufficient to warrant merit review of the claim. 
3

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 may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”5 20 

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.6

ANALYSIS 

Appellant requested reconsideration on April 27, 2015 of a December 18, 2014 OWCP 

decision denying his claim for compensation. OWCP had found the medical evidence was 

insufficient to establish an injury in the performance of duty on July 17, 2014. To be entitled to 

a merit review of his claim, the reconsideration request must meet one of the three requirements 

under 20 C.F.R. § 10.606(b)(3) discussed above. 

In his reconsideration request, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, or advance a relevant legal argument not previously 

considered by OWCP. He indicated only that he needed a referral to a physician. Appellant did 

not discuss a point of law or advance a new and relevant legal argument. Moreover, he did not 

submit any relevant and pertinent new evidence not previously considered by OWCP. The 

denial of the claim was based on the medical evidence, and appellant did not submit any new 

evidence with his reconsideration request. 

Appellant therefore did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). He 

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 by OWCP. Accordingly, the Board finds that OWCP 

properly denied review of the merits of his claim for compensation. 

On appeal, appellant provided an additional response to the questions posed in the 

November 18, 2014 questionnaire. As discussed above, the Board does not have jurisdiction 

over the merits of the claim for compensation in this case. The only issue presented on appeal 

was whether appellant had met any of the requirements of 20 C.F.R. § 10.606(b)(3) to establish 

entitlement to a merit review of his claim. For the reasons noted, OWCP properly denied merit 

review in the May 13, 2015 decision. 

 4

 5 U.S.C. § 8128(a) (providing 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). 

6 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
4

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s application for 

reconsideration was insufficient to warrant merit review of the claim. 

ORDER 

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

Compensation Programs dated May 13, 2015 is affirmed. 

Issued: February 3, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board