United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.K., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, OGDEN 

AIR LOGISTICS CENTER, HILL AIR FORCE 

BASE, UT, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1653 

Issued: April 25, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 9, 2016 appellant filed a timely appeal from a May 24, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated November 10, 2015, to the filing of this appeal, 

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 the claim.2

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The record provided the Board includes evidence received after OWCP issued its May 24, 2016 decision. 

However, the Board’s jurisdiction is limited to reviewing evidence that was part of the record at the time OWCP 

issued its final decision. Thus, the Board is precluded from reviewing this evidence on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

FACTUAL HISTORY 

On September 15, 2015 appellant, a 54-year-old fire chief, filed a traumatic injury claim 

(Form CA-1). He alleged that he sprained his right shoulder on August 19, 2015 when the foot 

peg of an elliptical trainer he was moving got caught between the slats of a pallet. 

By letter to appellant dated October 6, 2015, OWCP advised him that it required 

additional factual and medical evidence to determine whether he was eligible for compensation 

benefits. It noted that he did not provide a statement or description as to how his injury occurred, 

and asserted that such factual evidence was required to support his claim. OWCP asked 

appellant to submit a comprehensive medical report from his treating physician describing his 

symptoms and a medical opinion explaining the cause of any diagnosed condition. It afforded 

him 30 days to submit the requested evidence. 

In an October 28, 2015 memorandum, the employing establishment controverted the 

claim because appellant did not report the injury by submitting a Form CA-1 within 30 days of 

the injury. 

By decision dated November 10, 2015, OWCP denied the claim finding that appellant 

failed to meet his burden of proof to establish fact of injury. It explained that he failed to meet the 

factual component. 

On May 10, 2016 appellant requested reconsideration. 

Appellant submitted copies of e-mails he exchanged with an employing establishment 

workers’ compensation specialist dated October 28, 2015 and May 3, 4, and 9, 2016. In the 

May 2016 e-mails, he referenced the October 28, 2015 e-mails. Appellant indicated that he 

injured his right shoulder, that his condition had not improved, that his neurologist referred him 

for a magnetic resonance imaging (MRI) scan of his right shoulder, and that he was awaiting an 

appointment with an orthopedist. He also asked what he needed to do to reopen his case. The 

workers’ compensation specialist advised appellant that the employing establishment had 

controverted his claim for continuation of pay because he did not file his claim within 30 days of 

the alleged injury. 

By decision dated May 24, 2016, OWCP denied appellant’s request for reconsideration as 

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

require it to review the merits of the claim. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

 3

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 
3

must be received by OWCP within one year of the date of the decision for which review is 

sought.5 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (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.6

 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.7

ANALYSIS 

The Board finds that, in the present case, appellant has not shown that OWCP 

erroneously applied or interpreted a specific point of law nor has he 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.8 The evidence appellant submitted in connection with his 

reconsideration request, however, is not pertinent to the issue on appeal; i.e., whether appellant 

has established that he sustained an injury on August 19, 2015 in the performance of his federal 

employment at the time, place, and in the manner alleged.9

 The October 2015 and May 2016 

e-mails appellant submitted did not contain a statement or description as to how appellant’s 

alleged right shoulder injury occurred on August 19, 2015, as requested by OWCP. Appellant’s 

reconsideration request failed to show that OWCP erroneously applied or interpreted a point of 

law nor did it advance a point of law not previously considered by OWCP. OWCP did not abuse 

its discretion in refusing to reopen appellant’s claim for a review on the merits in its May 24, 

2016 decision. 

CONCLUSION 

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

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

 5 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined 

by the document receipt date of the request for reconsideration as indicated by the “received date” in the integrated 

Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(a), (b). 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 25, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board