United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Ann Arbor, MI, Employer 

__________________________________________ 

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Docket No. 15-1708 

Issued: November 9, 2015 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 11, 2015 appellant, through counsel, filed a timely appeal of a July 29, 2015 

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

180 days elapsed since the last merit decision dated June 9, 2014, and 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 refused to reopen appellant’s case for 

reconsideration of the merits of her claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 35-year-old cook, filed a claim for traumatic injury (Form CA-1) on 

January 15, 2014, alleging that she injured her knees and right hand on January 13, 2014 at 

3:30 a.m. when she fell while walking through a parking lot adjacent to her worksite. Her 

supervisor noted on the claim form that appellant’s tour of duty was from 5:00 a.m. until 1:30 

p.m. and that the alleged injury had not occurred in the performance of duty. 

On January 21, 2014 OWCP advised appellant that it required factual and medical 

evidence to determine whether she was eligible for compensation benefits. Appellant was 

requested to complete a questionnaire which queried whether the injury occurred on the 

premises, while performing employment duties. OWCP requested that she submit this evidence 

within 30 days. 

A January 13, 2014 treatment note revealed that appellant had sustained an injury on 

January 13, 2014. Appellant was restricted from pushing, pulling, twisting of her torso, and 

lifting more than 20 pounds until January 21, 2014.2 

In reports dated January 20, 22, and 28, 2014, Dr. Susan Blitz, Board-certified in internal 

medicine, was noted that appellant had slipped and fallen on ice on January 13, 2014, resulting in 

her experiencing pain in her left buttock radiating into her left posterior thigh. She rated 

appellant’s pain as a 6 or 7 on a scale of 1 to 10. Dr. Blitz diagnosed a lumbar strain with 

radiculopathy and recommended a course of physical therapy. 

In reports dated January 29, February 13, March 18, and April 24, 2014, Dr. Blitz 

reiterated her previous findings and conclusions. 

By decision dated June 9, 2014, OWCP denied appellant’s claim, finding that she had 

failed to submit sufficient medical evidence to establish an injury in the performance of duty on 

January 13, 2014. It found that she had not established that her injury occurred on the premises 

of the employing establishment at a reasonable time before her scheduled work hours. Therefore 

appellant had not established that her alleged injury occurred in the course of her federal 

employment. 

By letter dated May 22, 2015, received on May 26, 2015, counsel requested 

reconsideration and submitted additional medical reports. 

In an August 12, 2013 magnetic resonance imaging (MRI) scan report, Dr. Joon K. Kim, 

a Board-certified diagnostic radiologist, reported thoracic or lumbosacral neuritis or radiculitis, a 

small central disc protrusion at L3-4 and L4-5, small central disc protrusion at L5-S1, and diffuse 

degenerative facet joint changes with no significant spinal canal stenosis or disc protrusion. 

In a lumbar MRI scan report dated May 29, 2014, Dr. Ivan S. Katty, a Board-certified 

diagnostic radiologist, found thoracic or lumbosacral neuritis or radiculitis, unspecified, 

 2

 The signature on the note is illegible, but appears to be that of a physician assistant at the employing 

establishment. 
3

numbness weakness. The results were compared to the MRI scan appellant underwent on 

August 12, 2013 and found no acute compression deformity, no anterolisthesis, with mild disc 

desiccation, and mild facet arthropathy at L3-4, L4-5, and L5-S1. The tests also showed diffuse 

bulging disc with probable annular tear at L4-5 and L5-S1 and degenerative disease. 

By decision dated July 29, 2015, OWCP denied appellant’s application for review 

because it neither raised substantive legal questions nor included new and relevant evidence 

sufficient to require OWCP to review its prior decision. 

LEGAL PRECEDENT 

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

regulations under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her 

claim by showing that OWCP erroneously applied or interpreted a specific point of law; by 

advancing a relevant legal argument not considered by OWCP; or by submitting relevant and 

pertinent evidence not previously considered by OWCP.4

ANALYSIS 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, nor has she 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 in the case does not constitute a basis for reopening the 

claim.5 The evidence appellant submitted in connection with her May 26, 2015 reconsideration 

request, however, is not pertinent to the issue on appeal; i.e., whether her claimed January 13, 

2014 injury occurred on the premises of the employing establishment, at a reasonable time 

before she was to begin work, and that therefore the alleged injury arose in the performance of 

her federal employment. 

Appellant submitted the August 12, 2013 and May 29, 2014 MRI scan reports with her 

request. These reports, however, did not provide any evidence showing that her claimed 

January 13, 2014 injury occurred on the premises of the employing establishment, in the 

performance of her federal employment.6

 As appellant’s reconsideration request failed to meet 

any of the requirements, the Board finds that OWCP did not abuse its discretion in refusing to 

reopen appellant’s claim for a review on the merits in its July 29, 2015 decision. 

 3 Supra note 1 at § 8128(a). Under section 8128(a) of FECA, “[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 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 See David J. McDonald, 50 ECAB 185 (1998). 

6 See Patricia G. Aiken, 57 ECAB 441 (2006). 
4

CONCLUSION 

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

reconsideration on the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 9, 2015 

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