United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Fort Lauderdale, FL, 

Employer 

__________________________________________ 

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Docket No. 17-0889 

Issued: July 17, 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 March 15, 2017 appellant filed a timely appeal from a January 27, 2017 nonmerit 

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

elapsed from the last merit decision of OWCP dated April 8, 2016, 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 this case. 

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

On appeal appellant contends that he sustained a work-related injury and submitted 

additional medical evidence.2

FACTUAL HISTORY 

On January 21, 2016 appellant, then a 38-year-old technical enforcement officer, filed a 

traumatic injury claim (Form CA-1) alleging that on January 14, 2016 he injured his left hand, 

elbow, hip, and ankle and experienced pain and bruising while in the process of retrieving a 

tracker from the roof of a residence. He attempted to lower himself from a wet roof and lost his 

grip, falling approximately 10 feet to a cement sidewalk. Appellant alleged that several days 

later his back, neck, and hip were still sore. 

In medical reports dated February 1 and 15, 2016, Dr. Mauricio F. Herrera, an attending 

Board-certified orthopedic surgeon, noted a history that appellant fell 10 feet off a roof. He also 

noted that January 14, 2016 was the onset date of appellant’s left hip, left wrist, left hand, and 

left thumb symptoms, which included mild pain rated as 4 out of 10 by appellant. Dr. Herrera 

discussed findings on examination and diagnostic test results. He provided a Diagnosis Code of 

S73.192A for “other sprain of the left hip left,” S73.101D for “unspecified sprain of the right hip 

left,” and M70.72 for “other bursitis of the left hip.” Dr. Herrera provided an impression of hip 

labral tear, hip contusion, and left hip sprain/strain. On February 15, 2016 he ordered therapy to 

treat appellant’s unspecified right hip sprain and other bursitis of the left hip. In a Florida 

workers’ compensation form dated February 15, 2016, Dr. Herrera reiterated his diagnoses and 

advised that physical occupational therapy was necessary. He advised that appellant had no 

physical restrictions. 

By letter dated March 1, 2016, OWCP advised appellant that when his claim was 

received, it appeared to be a minor injury that resulted in minimal or no lost time from work and, 

since the employing establishment did not controvert continuation of pay or challenge the case, a 

limited amount of medical expenses were administratively approved and paid. It noted that it 

had reopened the claim for consideration because the medical bills had exceeded $1,500.00. 

OWCP requested that appellant submit additional factual and medical evidence. It received a 

report and daily notes dated February 19 to March 10, 2016 from appellant’s physical therapist. 

In a March 14, 2016 report, Dr. Herrera examined appellant and noted that his left hip 

pain had resolved. In a March 14, 2016 Florida workers’ compensation form, he restated that 

appellant had no physical limitations or restrictions. 

In a February 5, 2016 left hip magnetic resonance imaging (MRI) scan report, 

Dr. Jonathan Luchs, a Board-certified radiologist, provided an impression of left tensor fascia 

lata muscle tendon junction avulsion injury to the proximal iliotibial band with adjacent soft 

tissue reactive edema. He also provided an impression of lateral gluteus maximus muscle strain 

and partial tear, left greater trochanteric bursitis, and anterosuperior labral tear. 

 2

 The Board’s Rules of Procedure provide that the Board is precluded from reviewing evidence which was not 

before OWCP at the time it issued its final decision. Thus, the Board may not consider this new evidence for the 

first time on appeal. See 20 C.F.R. § 501.2(c)(1). 
3

By decision dated April 8, 2016, OWCP denied appellant’s traumatic injury claim as the 

medical evidence of record was insufficient to establish that his diagnosed medical condition was 

causally related to the accepted January 14, 2016 employment-related incident. 

OWCP received additional daily notes dated March 2, 11, and 14, 2016 from appellant’s 

physical therapist. 

On April 28, 2016 appellant requested reconsideration. 

By decision dated January 27, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of the claim. It found that the evidence submitted in support of 

reconsideration was irrelevant or immaterial. 

LEGAL PRECEDENT 

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.3

 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).4

 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.5

 Section 10.608(b) provides that when a request for 

reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.6

ANALYSIS 

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

without further merit review.7

OWCP issued an April 8, 2016 merit decision denying appellant’s traumatic injury claim, 

finding that the medical evidence was insufficient to establish that his diagnosed medical 

condition was causally related to the accepted January 14, 2016 employment-related incident. 

On April 28, 2016 appellant requested reconsideration. OWCP declined his request for 

reconsideration in a January 27, 2017 nonmerit decision. 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.608(a). 

5 Id. at § 10.606(b)(3). 

6 Id. at § 10.608(b). 

7 See B.D., Docket No. 16-1177 (issued October 27, 2016). 
4

The Board does not have jurisdiction over the April 8, 2016 merit decision and can 

consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which 

would prompt OWCP to reopen the case for merit review. The underlying issue on 

reconsideration is medical in nature, whether the medical evidence establishes a causal 

relationship between his bilateral hip condition and the accepted January 14, 2016 employment 

incident. 

The Board finds that in his April 28, 2016 request for reconsideration, appellant did not 

show that OWCP erroneously applied or interpreted a specific point of law, or advance a new 

and relevant legal argument not previously considered. Thus, appellant is not entitled to a 

review of the merits of his claim based on the first and second above-noted requirements under 

section 10.606(b)(3). 

The Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered. The new daily notes dated March 2, 11, and 14, 2016 from 

appellant’s physical therapist are insufficient to warrant merit review as a physical therapist is 

not considered a physician as defined under FECA.8

 Thus, these documents are irrelevant to the 

underlying medical issue. 

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.9

On appeal appellant argues the merits of his claim. The Board, as noted above, only has 

jurisdiction over OWCP’s January 27, 2017 nonmerit decision which denied his request for 

reconsideration and, therefore, is precluded from conducting a merit review. 

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). 

 8 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by State law). 

9 See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,

Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); 

(when an application for reconsideration does not meet at least one of the three requirements enumerated under 

section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on 

the merits). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 17, 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