United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

DEPARTMENT OF LABOR, MINE, SAFETY & 

HEALTH ADMINISTRATION, Franklin, TN, 

Employer 

__________________________________________ 

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Docket No. 16-0722 

Issued: June 2, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 29, 2016 appellant, through counsel, filed a timely appeal from a 

September 3, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed since the last merit decision dated January 15, 2015, 

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. 

ISSUE 

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

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 24, 2014 appellant, then a 52-year-old mine, safety and health inspector, filed 

a traumatic injury claim (Form CA-1) alleging that on October 8, 2014 he slipped and fell during 

an equipment inspection and sustained injuries to his right calf, elbow, shoulder, and neck. He 

did not stop work. 

By letter dated December 8, 2014, OWCP advised appellant that his claim was originally 

received as a simple, uncontroverted case which resulted in minimal or no time loss from work. 

It indicated that appellant’s claim had been administratively handled to allow medical payments 

up to $1,500.00, but the merits of the claim had not been formally adjudicated. OWCP advised 

that, because appellant had explained that he was having difficulty obtaining medical care for his 

claimed injury, his claim would be formally adjudicated. It requested that appellant submit a 

comprehensive medical report from his treating physician which included a reasoned explanation 

as to how his employment had contributed to his injuries. 

Appellant was treated by Dr. Richard T. Rutherford, a Board-certified family practitioner, 

on December 13, 2014 for knee, neck, and shoulder injuries. He reported that on October 8, 

2014 he fell off a piece of equipment at work and injured his right knee, neck, and right shoulder. 

Dr. Rutherford noted an essentially normal examination in the upper and lower extremities and 

diagnosed gastroesophageal reflux disease, hyperlipidemia, coronary artery disease, cervical root 

lesions, pain in the right shoulder joint, and neuralgia. In a workers’ compensation form dated 

December 13, 2014, he noted that on October 8, 2014 appellant had fallen off a piece of 

equipment at work and injured his right shoulder and neck. Dr. Rutherford noted that appellant 

could return to work without restrictions. 

In a decision dated January 15, 2015, OWCP denied appellant’s claim because the 

evidence submitted was insufficient to establish that the claimed medical conditions were 

causally related to the established work-related events. 

In an appeal request form dated May 27, 2015, appellant requested reconsideration and 

submitted additional evidence. He submitted a magnetic resonance imaging (MRI) scan of the 

right shoulder dated March 5, 2015 which revealed tendinopathy, a partial thickness tear of the 

supraspinatus tendon, and mild glenohumeral arthritis. An electromyogram (EMG) dated 

April 29, 2015 revealed possible mild radial and median sensory neuropathy with possible injury 

to right trapezius. 

Appellant submitted evidence from Dr. Roy C. Terry, a Board-certified orthopedist, who 

treated him on February 19, 2015 for injuries sustained when he fell off a piece of equipment on 

October 8, 2014. Appellant reported pain in the right shoulder, neck, head, and upper back, with 

right arm numbness. In an April 2, 2015 report, Dr. Terry treated appellant for persistent pain in 

the right shoulder, neck, and arm. He noted reviewing the January 15, 2015 OWCP decision. 

Dr. Terry opined that appellant sustained an injury causally related to an accident in 

which he fell off a piece of equipment. Appellant reported that when he fell he tried to prevent 

the fall by grabbing with his arm. Dr. Terry opined that this action caused problems with his 

right shoulder, right paracervical muscles, right cervical nerve roots, brachial plexus; as well as 
3

the symptomology which exists and was continually exhibited from this area. He noted awaiting 

further studies to support the actual anatomic changes which may have occurred at the time of 

this injury. Dr. Terry noted that appellant’s problems emanated from this injury and that his 

diagnosed conditions were real. Examination revealed tenderness on the right paracervical 

region, no gross atrophy about his shoulders, no evidence of gross neurologic deficit of the 

forearm or hand, and limitation of right shoulder motion. Dr. Terry diagnosed shoulder pain and 

neck pain. 

Appellant also submitted photographs of a trackhoe excavator. He submitted a statement 

from Ressie Jackson, a coworker, who witnessed him climbing onto the trackhoe when he 

slipped off the equipment and struck his right side, shoulder, and lower leg. 

By decision dated September 3, 2015, OWCP denied appellant’s request for 

reconsideration as the evidence was insufficient to warrant a merit review. It found that the 

evidence submitted was duplicative or repetitious. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion 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 of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

“(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.”3

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)(3) will be denied 

by OWCP without review of the merits of the claim.4

ANALYSIS 

OWCP’s September 3, 2015 decision denied appellant’s reconsideration request, without 

conducting a merit review. 

However, with his May 27, 2015 reconsideration request, appellant submitted relevant 

and pertinent new evidence not previously considered by OWCP. He submitted a new April 2, 

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b). 
4

2015 narrative report from a new orthopedic physician, Dr. Terry, who treated him for pain in 

the right shoulder, neck, and arm. Dr. Terry noted reviewing the January 15, 2015 OWCP 

decision and opined that appellant sustained an injury causally related to an accident which 

occurred when he fell off a piece of equipment. Appellant reported that when he fell he tried to 

prevent the fall by grabbing with his arm. Dr. Terry opined that this action caused problems with 

his right shoulder, right paracervical muscles, right cervical nerve roots, and brachial plexus. He 

noted awaiting further studies to support the actual anatomic changes which occurred at the time 

of this injury. Dr. Terry opined that appellant’s problems emanated from this injury and that 

examination revealed tenderness on the right paracervical region, no gross atrophy about his 

shoulders, no evidence of gross neurologic deficit of the forearm or hand with limited range of 

motion of the right shoulder. He diagnosed shoulder pain and neck pain. 

This medical evidence is new and relevant as the physician opined that appellant was 

injured on October 8, 2014. Although OWCP’s September 3, 2015 decision found that the 

evidence was duplicative, this medical report is from a specialist in orthopedics and had not been 

previously considered by OWCP in rendering a decision. The Board has held that the 

requirement for reopening a claim for merit review does not include the requirement that a 

claimant must submit all evidence which may be necessary to discharge his or her burden of 

proof. Instead, the requirement only specifies that the evidence be relevant and pertinent and not 

previously considered by OWCP.5

 The Board finds that, in accordance with 20 C.F.R. 

§ 10.606(b)(3)(iii), this new evidence from Dr. Terry is sufficient to require reopening 

appellant’s case for further review on its merits. 

 Therefore, the case must be remanded for a merit review. Following this and such other 

development as deemed necessary, OWCP shall issue an appropriate merit decision on 

appellant’s claim. 

CONCLUSION 

The Board finds that OWCP, in its decision dated September 3, 2015, improperly denied 

appellant’s request for reconsideration of his case on its merits. 

 5 See Helen E. Tschantz, 39 ECAB 1382 (1988). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

development in accordance with this decision. 

Issued: June 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board