United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Anthony, NM, Employer 

__________________________________________ 

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Docket No. 17-0319 

Issued: April 4, 2017 

Appearances: Case Submitted on the Record

Fernando Dominguez, for the appellant1

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 28, 2016 appellant, through his representative, filed a timely appeal from a 

September 27, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision dated May 13, 2016, 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 to review the merits of this case.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 With his request for an appeal, appellant submitted additional evidence. The Board’s jurisdiction is limited to 

reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board may not 

consider this additional evidence on appeal. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

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

the merits under 5 U.S.C. § 8128. 

FACTUAL HISTORY 

On October 27, 2015 appellant, then a 58-year-old federal correctional officer, filed an 

occupational disease claim, (Form CA-2), alleging that while firing a nine millimeter shotgun 

and an R15 rifle he felt a sharp pain and lost strength in his right hand. He experienced difficulty 

pulling the trigger of the weapons needed for weapons qualification. Appellant advised that he 

thought he may have developed carpal tunnel syndrome. He first became aware of his condition 

on February 1, 2011 and realized it was causally related to his federal employment on 

September 21, 2015. Appellant retired on August 31, 2014.4

 

Appellant submitted an injury and illness incident report, dated February 1, 2011, which 

repeated the incidents surrounding his claim and indicated that constant and repetitive use of his 

right hand and wrist caused his condition. 

In a November 3, 2015 letter, OWCP advised appellant of the type of evidence needed to 

establish his claim. It particularly requested that appellant submit a comprehensive medical 

report from his treating physician explaining how the specific work factors or incidents had 

contributed to his claimed injury. 

On September 22, 2015 appellant was treated by Dr. Les Benson, an osteopath, for right 

hand pain. He reported working as a correctional officer and performing repetitive duties, 

including carrying and using heavy keys, constantly twisting his hand and wrist to open and lock 

doors, keyboarding, handcuffing inmates, using his hands to defend himself during inmate 

altercations and firearms training. Appellant noted performing these duties up to eight hours a 

day, five days a week. He acknowledged injuring his right hand years ago and his work duties 

recently aggravated this condition. Dr. Benson noted positive Phalen’s and Tinel’s sign and 

diminished reflexes. He diagnosed carpal tunnel syndrome. A September 23, 2015 magnetic 

resonance imaging (MRI) scan of the right wrist and hand noted findings that included 

degenerative changes. OWCP also received a position description for a correctional officer. 

In a December 7, 2015 decision, OWCP accepted the employment activities as set forth 

by appellant but denied the claim because appellant had not submitted medical evidence 

establishing a diagnosis in connection with the employment factors. 

On January 4, 2016 appellant requested a review of the written record by an OWCP 

hearing representative. In support of his request, he provided an August 19, 2015 report from 

Dr. Barry L. Cromer, a Board-certified orthopedist, who had treated appellant for right diffuse 

 4

 Appellant filed a CA-2a, recurrence of disability claim, alleging that on February 1, 2011 he had a recurrence of 

disability causally related to a March 15, 1984 work injury. He stopped work on August 31, 2014. Appellant 

subsequently filed an occupational disease claim (Form CA-2) and noted the same date of injury and proceeded with 

his claim as a new occupational disease. 
3

wrist pain, pain with motion, and weakness which had persisted for years. Dr. Cromer diagnosed 

cubital tunnel syndrome, wrist pain, sprains and strains of the wrist, and ulnar nerve injury. He 

ordered an electromyogram (EMG) and nerve conduction velocity (NCV) studies. On 

September 14, 2015 Dr. Comer referred appellant for occupational therapy. On August 31, 2015 

Dr. Michael J. Mrochek, a Board-certified physiatrist, conducted an EMG/NCV study of the 

right upper extremity, which reflected mild chronic distal ulnar neuropathy, but no ulnar 

denervation, ulnar neuropathy at the elbow nor any median neuropathy at the wrist. Appellant 

also submitted evidence previously of record. 

By decision dated May 13, 2016, an OWCP hearing representative affirmed the 

December 7, 2015 decision, finding the medical evidence failed to provide an accurate history of 

injury, a definitive diagnosis, and an unequivocal medical opinion on causal relationship. 

In an appeal request form dated August 31, 2016, received by OWCP on September 12, 

2016, appellant requested reconsideration. 

In a September 27, 2016 decision, OWCP denied appellant’s request for reconsideration 

as he neither raised substantive legal questions nor included relevant and pertinent new evidence 

and was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,5 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)(3) 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; 

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.”6

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.7

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(b). 
4

ANALYSIS 

OWCP denied appellant’s claim because he failed to submit medical evidence 

establishing that a medical condition was diagnosed in connection with the accepted work 

factors. On September 12, 2016 appellant requested reconsideration. 

The Board finds that 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 provide relevant and pertinent new evidence not previously considered by OWCP. 

Appellant’s August 31, 2016 reconsideration request consisted only of a checkmark on an 

appeal request form indicating that he wanted reconsideration. He did not offer any argument or 

submit any evidence in support of his request. Appellant suggested no reason for OWCP to 

reconsider the denial of his occupational disease claim. Such a bare request is insufficient to 

warrant a reopening of his case.8

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

On appeal appellant asserts that he submitted a new electrodiagnostic study and reports 

from Dr. Benson and Dr. Boone to OWCP, prior to the September 27, 2016 decision, which were 

misplaced or lost. He asserted that he had postal receipts to show that the evidence was 

submitted. The Board notes that OWCP considered all the evidence received at the time of its 

September 27, 2016 decision and that the documents referenced by appellant were not of record 

at the time of that decision. The Board’s jurisdiction is limited to the evidence that was before 

OWCP at the time it issued its final decision; therefore, the Board is unable to review this 

evidence on appeal.9 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

 8 See L.B., Docket No. 14-2064 (issued February 3, 2015); J.A., Docket No. 14-1447 (issued October 21, 2014). 

9 See supra note 2. 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 4, 2017 

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