United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.G., Appellant 

and 

DEPARTMENT OF THE ARMY, 

INSTALLATION MANAGEMENT 

COMMAND, Fort Drum, NY, Employer 

___________________________________________

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Docket No. 14-0715 

Issued: June 24, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se, 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 11, 2014 appellant filed a timely appeal from an August 29, 2013 nonmerit 

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

elapsed from the filing of this appeal and the last merit decision, issued on July 18, 2012 and 

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 claim.2

 1

 5 U.S.C. § 8101 et seq. 

2

 The record contains February 24 and April 9, 2014 OWCP nonmerit decisions denying reconsideration of the 

July 18, 2012 OWCP decision. The Board and OWCP cannot simultaneously exercise jurisdiction over the same 

issue. See 20 C.F.R. § 501.2(c)(3). As OWCP issued its decision while the Board has jurisdiction over the matter in 

dispute, they are null and void. See Lawrence Sherman, 55 ECAB 35 (2004); Russell E. Lerman, 43 ECAB 770 

(1992); Douglas E. Billings, 41 ECAB 880 (1990). 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 7, 2009 appellant, then a 56-year-old office aid, filed a traumatic injury claim 

alleging that on April 3, 2009 he sustained back pain while cutting grass, bending and lifting at 

work. He did not stop work. The employing establishment noted that no injury was reported at 

the time and that appellant never notified his supervisors of an injury. It also noted that he was 

on medical restrictions at the time of the claimed injury. 

In a September 23, 2009 memorandum, Robert Sillik, the Chief of Facility Management, 

indicated that the claim was given to him on September 15, 2009 and listed April 3, 2009 as the 

date of injury. This date of injury was three days after appellant had been assigned to work for 

Mr. Sillik. Appellant did not notify Mr. Sillik that he had been injured or needed medical 

treatment. Mr. Sillik stated that management advised appellant to observe his existing 

restrictions, which included a five-minute break every hour, no repetitive elbow movements, and 

no pushing, pulling, lifting of more than 20 pounds for no more than two hours at a time. 

On October 14, 2009 OWCP asked that appellant respond to Mr. Sillik’s comments, 

further explain how his injury occurred, and submit medical evidence addressing causal 

relationship. 

In a November 10, 2009 statement, appellant related that his pain began the day he 

started spot painting which also involved scraping, filling holes, and sanding. He related that 

most of the spots were overhead such that it required a lot of bending or stretching. Appellant 

noted telling managers about his pain the first time he mowed the grass. He stated that he 

complained that the tractor used for mowing was very bad on his back. Appellant indicated that, 

since he began his job, it involved about “99 percent” regular maintenance instead of light 

maintenance. He explained that he did not have “all this pain before I started” and now he had it 

constantly because of bending, stretching, and cutting grass on the tractor, instead of a lawn 

mower. Appellant advised that he requested a traumatic injury claim form in August, but did not 

get one until he asked a different manager. 

Appellant also submitted medical evidence. This included a July 30, 2009 report from 

Dr. Edward N. Powell, a Board-certified orthopedic surgeon, who advised that appellant reported 

pain from between his shoulder blades down to his low back “ever since he went back to work.” 

Appellant also indicated to Dr. Powell that he should not be working due to elbow pain caused 

by his work. He attributed his back pain to entering and exiting vehicles and the bumping of the 

vehicles. Dr. Powell stated that there was no specific injury to appellant’s back. Appellant noted 

having previous back pain that was related to chronic pancreatitis, but appellant related that his 

current pain was caused by work. Dr. Powell reported an impression of back pain with no hard 

neurologic signs. In an August 20, 2009 treatment note, he advised that a lumbar magnetic 

resonance imaging (MRI) scan showed “just a little bit of a degenerative disc.” Dr. Powell 

indicated that there was not “much to do, except symptomatic care.” 
3

 By decision dated November 18, 2009, OWCP denied appellant’s claim as he did not 

establish an injury as alleged. It found that the evidence did not substantiate that the actual event 

occurred as alleged. 

On September 23, 2010 appellant requested reconsideration and submitted additional 

evidence. 

In an October 28, 2010 memorandum, Mr. Sillik advised that, when appellant reported 

for work on March 30, 2009, he stated that he had upcoming medical appointments for prior 

injuries and also provided a work capacity evaluation showing his limitations. He reiterated that 

appellant was told not to violate his restrictions. Mr. Sillik explained that he tried to assign 

appellant computer duties but appellant indicated that he did not know how to use a computer. 

Because of this appellant was assigned light maintenance duties. Mr. Sillik noted that, even 

when appellant was assigned to cut grass with the riding lawn mower, he was told to take breaks 

as needed. 

In a December 5, 2010 letter, appellant contended that certain physical exertions entailed 

in spot painting caused his back pain. He noted that he had to cut grass on a small tractor, which 

had no shocks which caused his back to hurt, and not a riding lawn mower. Appellant contended 

that, before September 15, 2009, he performed regular maintenance, not light maintenance. He 

indicated that his job was structured to allow for 40 percent light maintenance, not 100 percent 

regular maintenance. Appellant asserted that he was forced to take a job he was not qualified for 

and that this caused his pain. He further asserted that Mr. Sillik lied about aspects of his claim 

because he had filed complaints about Mr. Sillik. 

In a decision dated December 22, 2010, OWCP modified the November 18, 2009 

decision to reflect that, while the factual component of fact of injury had been established, the 

claim was denied for failure to establish the medical component of fact of injury. It noted that 

the treating physician did not connect the back condition to his employment. 

Appellant submitted additional evidence and requested reconsideration on February 14, 

September 12, 2011 and April 16, 2012. OWCP denied modification in decisions dated May 23, 

November 15, 2011 and July 18, 2012, finding that the medical evidence was insufficient to 

establish his claim.3

On July 7, 2013 appellant requested reconsideration. He argued that a breach of contract 

existed because the employing establishment forced him to sign an agreement to take a job. 

Appellant indicated that the contract was broken because his duties were supposed to be 60 

percent clerical and 40 percent maintenance. He explained that he was supposed to work with a 

small riding lawn mower and instead was given a tractor, which had no shock absorbers and was 

a primary reason for his back pain. Appellant asserted that he should receive full compensation 

since the end of his job. 

 3

 In support of his April 16, 2012 reconsideration request, appellant submitted a November 29, 2011 treatment 

note from Dr. Powell who opined that “mowing and work probably did not cause” his arthritis but it “might have 

precipitated the symptoms.” Dr. Powell noted that it was “hard to prove from a medical standpoint.” 
4

In a decision dated August 29, 2013, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant review of its prior 

decision. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains 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 OWCP; or 

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

by OWCP.”5

 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.6

ANALYSIS 

Appellant disagreed with the denial of his traumatic injury claim and timely requested 

reconsideration on July 7, 2013. The underlying issue on reconsideration is medical in nature, 

whether the April 3, 2009 work incident caused or contributed to an injury. 

On reconsideration, appellant argued that a breach of contract existed because the 

employing establishment forced him to sign an agreement regarding a job.7

 Additionally, he 

argued that the contract was broken because he had been promised duties that were 60 percent 

clerical and 40 percent maintenance. Appellant explained that he was supposed to work with a 

small riding lawn mower and instead was given a tractor which had no shock absorbers. OWCP 

denied the claim because the medical evidence did not contain medical opinion evidence 

explaining how his back condition was caused or aggravated by specific factors of his 

employment.8 Appellant made arguments about his duties and the employing establishment’s 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b). 

6 Id. at § 10.608(b). 

7

 Although appellant makes references to signing an agreement regarding a job, he did not submit a copy. 

8 See for example, A.D., 58 ECAB 149 (2006). 
5

personnel practices. He did not sufficiently explain how this demonstrated a legal error by 

OWCP or how it advanced a relevant legal argument not previously considered by OWCP. The 

Board has held that the submission of evidence which does not address the particular issue 

involved is not a basis on which to reopen a case.9

 

Furthermore, appellant did not submit new and relevant medical evidence addressing 

whether his employment contributed to his claimed condition. As noted, OWCP accepted that 

appellant was performing certain job duties. The reason it denied the claim was that the medical 

evidence did not sufficiently explain how particular job duties caused or contributed to his 

claimed back condition. To have his claim reopened for a merit review, appellant needed to 

submit new medical evidence addressing how his job duties caused or contributed to a diagnosed 

medical condition. 

Appellant therefore 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 

constitute new and relevant evidence not previously considered. 

On appeal, appellant argues that he felt that he was being called a “liar or a cheat” every 

time his claim was denied. He argued that his physician indicated that it was possible for the 

tractor and grass cutting to cause pain in his back. Appellant asserted that his job was not a 

genuine position but was an odd-lot sheltered employment position and that OWCP mishandled 

his claim. The Board does not have jurisdiction to review the merits of the case. These 

arguments go to the substantive issues of the claim. The issue on appeal is not whether 

appellant’s claim is compensable but whether OWCP erred by declining to review that issue. 

Appellant did not submit any evidence or argument in support of his reconsideration request that 

warranted reopening of his claim for a merit review under section 8128(a). 

CONCLUSION 

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

review of the merits of his claim under 5 U.S.C. § 8128(a). 

 

9 Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 29, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 24, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board