United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL MEDICAL CENTER, 

Lexington, KY, Employer 

__________________________________________ 

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Docket No. 14-991

Issued: September 15, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 25, 2014 appellant filed a timely appeal from an October 4, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision of record is dated June 18, 2013. There is no merit decision within 180 days of 

March 25, 2014, the date appellant filed his appeal with the Board. Therefore, pursuant to the 

Federal Employees’ Compensation Act1

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

lacks jurisdiction over the merits of this case.2

ISSUE 

The issue is whether OWCP properly denied reconsideration pursuant to 

5 U.S.C.§ 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence accompanying his request for appeal. However, the Board may not 

consider new evidence for the first time on appeal that was not before OWCP at the time it issued the final decision 

in the case. 20 C.F.R. § 501.2(c). 
2

On appeal, appellant asserts that workplace security videotapes would verify that he was 

injured in the performance of duty. He contends that, following the injury, he promptly reported 

to a hospital emergency room as ordered. 

FACTUAL HISTORY 

On May 6, 2013 appellant, then a 27-year-old corrections officer, filed a traumatic injury 

claim (Form CA-1) claiming that earlier that day, he sustained right upper extremity and back 

pain when a prisoner who he was escorting collapsed into his arms. 

In a May 13, 2013 letter, OWCP advised appellant of the additional evidence needed to 

establish his claim, including factual information corroborating the claimed incident and a 

medical report supporting that the incident caused an injury. Appellant was afforded 30 days to 

submit such evidence. However, no additional evidence was received by OWCP prior to 

June 18, 2013. 

By decision dated June 18, 2013, OWCP denied appellant’s claim on the grounds that 

fact of injury was not established. It accepted that the May 13, 2013 incident occurred at the 

time, place and in the manner alleged. OWCP further found, however, that as appellant did not 

submit any medical evidence supporting causal relationship, he did not establish that he 

sustained an injury as claimed. 

In a September 23, 2013 letter, appellant requested reconsideration. He did not submit 

additional evidence or argument. 

By decision dated October 4, 2013, OWCP denied reconsideration as appellant’s 

September 23, 2013 reconsideration did not raise substantive legal questions or include new and 

relevant evidence. It was therefore insufficient to warrant a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides 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.4 Section 10.608(b) 

provides that when an application for review of the merits of a claim does not meet at least one 

of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.5

 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008). 
3

In support of a request for reconsideration, a claimant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.6 The claimant need 

only submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing 

an OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.8

 

ANALYSIS 

Appellant claimed that he sustained right upper extremity and back injuries when he 

caught a collapsing prisoner. OWCP denied the claim, by decision dated June 18, 2013, as 

appellant had submitted no medical evidence establishing an injury. Appellant requested 

reconsideration by September 23, 2013 letter, but did not present a legal argument or submit 

additional evidence. OWCP denied reconsideration by October 4, 2013 decision, finding that 

appellant’s letter did not warrant a merit review as it did not raise substantive legal questions or 

include new, relevant evidence. 

A claimant may be entitled to a merit review by submitting new and relevant evidence; 

however, appellant did not do so in this case. The only document submitted pursuant to his 

September 23, 2013 letter requesting reconsideration was the letter itself, which did not present 

any legal argument. Appellant did not provide additional evidence. 

The Board accordingly 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 constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

On appeal, appellant asserts that security videotapes would verify that he was injured in 

the performance of duty. He contends that he promptly reported to a hospital emergency room 

as ordered. These arguments pertain to the merits of the claim. As explained above, the Board 

does not have jurisdiction over the merits of the case on the present appeal. 

CONCLUSION 

The Board finds that OWCP properly denied reconsideration. 

 6 Helen E. Tschantz, 39 ECAB 1382 (1988). 

7 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

8 Annette Louise, 54 ECAB 783 (2003). 
4

ORDER 

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

Compensation Programs dated October 4, 2013 is affirmed. 

Issued: September 15, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board