United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

DEFENSE AGENCIES, DEFENSE 

COMMISSARY AGENCY, ELMENDORF AIR 

FORCE BASE, AK, Employer 

__________________________________________ 

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Docket No. 15-0588 

Issued: July 16, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal from an October 8, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 

days elapsed between the last merit decision dated October 30, 2013 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 to review the merits of appellant’s claim. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On September 10, 2013 appellant, then a 50-year-old material handler, filed a traumatic 

injury claim alleging that on July 23, 2013 he injured his lower right back while stocking 

shelves. 

In correspondence dated September 13, 2013, OWCP informed appellant that the 

evidence of record was insufficient to establish his claim. Appellant was advised as to the 

medical and factual evidence required and given 30 days to provide this information. 

Following the September 13, 2013 letter, OWCP received the following evidence. In a 

July 23, 2013 disability note, Megan Jackson, RN, stated that appellant was seen that day and 

that he was disabled from work for the period July 25 to 26, 2013. 

In an undated report, Dr. Todd Quier, a treating Board-certified family practitioner, 

reported that appellant was seen on August 2, 2013 at the emergency room for back pain. He 

related that appellant had been out of work since July 23, 2013 and that appellant believed that 

he could return to work that day, August 2, 2013. Dr. Quier related that he had not examined 

appellant so that he could not provide restrictions or recommendations. On August 12, 2013 he 

reported that he had evaluated appellant that day, and opined that he was totally disabled for the 

period August 5 to 12, 2013, but could return to modified duty with restrictions as noted for the 

period August 12 to 25, 2013. 

Dr. Quier noted in an October 11, 2013 report that appellant had been seen in the 

employing establishment’s emergency room on July 23, 2013 for complaints of acute back pain. 

He attributed the acute back pain to appellant “pulling something at work, while bent over.” 

Dr. Quier noted that the acute back pain was caused by acute spasm in the lower back. On 

August 6, 2013 appellant reaggravated his back and was seen again in the employing 

establishment’s emergency room. In concluding, Dr. Quier reported seeing appellant on 

August 12, 2013, that his condition was improving, and that he returned appellant to light duty 

for two weeks. 

In a July 24, 2013 work excuse form, Dr. Katharine Davidson, a Board-certified 

emergency room physician, stated that appellant had been seen that day at the employing 

establishment’s emergency room and released to work on July 25, 2013. 

By decision dated October 30, 2013, OWCP denied appellant’s claim, finding that fact of 

injury had not been established. It found that the July 23, 2013 incident occurred as alleged, but 

that the medical evidence of record failed to contain a diagnosis in connection with the July 23, 

2013 incident. OWCP stated that pain and spasm are considered symptoms and not diagnoses. 

On September 25, 2014 OWCP received appellant’s request for reconsideration dated 

September 24, 2014. Appellant noted that he had additional evidence from his physician to 

submit. No medical evidence was submitted with appellant’s request. 

By decision dated October 8, 2014, OWCP denied reconsideration. It found that 

appellant failed to meet the requirements under 20 C.F.R. § 10.606 as he had not submitted any 

factual or medical evidence with his request or raised a substantive legal argument. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulations provide 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.3 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.4

 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.5

 

ANALYSIS 

OWCP accepted that the July 23, 2013 employment incident occurred as alleged, but 

found that appellant had failed to establish fact of injury, as the medical evidence was 

insufficient to establish that a medical condition had been diagnosed in connection with the 

July 23, 2013 employment incident. On September 24, 2014 appellant disagreed with OWCP’s 

denial of his claim and requested reconsideration. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In his September 24, 2014 request for reconsideration, appellant failed to show that 

OWCP had erroneously applied or interpreted a specific point of law. He also failed to advance 

a new and relevant legal argument not previously considered by OWCP. A claimant may be 

entitled to a merit review by submitting pertinent new and relevant evidence, but appellant did 

not submit any evidence in support of his request. Appellant stated that new medical evidence 

would be submitted from his physician, but none was received by OWCP at the time of issuance 

of the October 8, 2014 decision. 

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. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

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

 2

 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application. 

3

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

4 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

5 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
4

ORDER 

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

Compensation Programs dated October 8, 2014 is affirmed. 

Issued: July 16, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board