United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.A., Appellant 

and 

NUCLEAR REGULATORY COMMISSION, 

HRO-HEADQUARTERS, Washington, DC, 

Employer 

__________________________________________ 

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Docket No. 16-1586 

Issued: January 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 1, 2016 appellant filed a timely appeal from a March 29, 2016 nonmerit 

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

elapsed since the last merit decision dated October 6, 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 this case.2

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that following the March 29, 2016 nonmerit decision OWCP received additional evidence. 

Appellant also submitted evidence with her appeal to the Board. However, the Board may only review evidence that 

was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 

(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 

281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

ISSUE 

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

under 5 U.S.C. § 8128(a). 

On appeal appellant argues that her chronic neck pain had been aggravated by her 

computer use at work. 

FACTUAL HISTORY 

On July 23, 2015 appellant, then a 37-year-old chemical engineer, filed an occupational 

disease claim (Form CA-2) alleging that on July 15, 2015 she first realized that her neck pain 

was caused by her computer use. 

In a letter dated August 13, 2015, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim. Appellant was advised regarding the medical and factual 

evidence required to establish her claim. In the attached questionnaire, OWCP requested that she 

provide a detailed description of the employment activities she believed caused or aggravated her 

condition including the number and length of times she performed these activities. It afforded 

appellant 30 days to submit the requested evidence. Appellant did not respond to OWCP’s 

August 13, 2015 letter. 

By decision dated October 6, 2015, OWCP denied appellant’s claim as it found she had 

failed to establish fact of injury. It found the evidence of record insufficient to establish that 

event or events occurred as alleged due to failure to provide a factual statement describing the 

factors she believed caused or aggravated her condition. OWCP also noted that appellant failed 

to provide any medical evidence. 

On March 21, 2016 appellant requested reconsideration. In support of her request she 

submitted documents on the effects of vertebral subluxation, spinal nerve function, and forward 

head syndrome; photographs of diagnostic images; and a January 18, 2016 report by Dr. Richard 

Hagmeyer, a chiropractor. Dr. Hagmeyer diagnosed forward head syndrome based on review of 

x-ray interpretation. 

By decision dated March 29, 2016, OWCP denied reconsideration. It found the evidence 

submitted was insufficient to warrant a merit review as it failed to address the basis for the denial 

of appellant’s claim, which was failure to prove fact of injury. OWCP noted that she had not 

submitted any statement describing her job duties, outside activities, medical care, or 

circumstances regarding her injury. 

LEGAL PRECEDENT 

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

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

 3

 5 U.S.C. § 8101 et seq. 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

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.4

 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant’s application for review must be received by OWCP within one 

year of the date of that decision.5 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.6

ANALYSIS 

Appellant claimed that she sustained a neck injury due to factors of her federal 

employment. In her July 23, 2015 claim form, the only document of record containing her direct 

description of work factors, she attributed her neck condition to using a computer. On 

August 13, 2015 OWCP requested that appellant submit a detailed statement describing the 

employment tasks and specifying the frequency and duration of the tasks she attributed to 

computer work on her claim form. Appellant did not provide the information OWCP had 

requested describing her employment task or the frequency and duration of computer use. Due 

to the lack of a factual statement describing the factors of employment, OWCP issued its 

October 6, 2015 decision denying the claim, finding that appellant failed to establish the factual 

component of fact of injury, as the claimed work incident was not established. It also noted that 

appellant had failed to submit medical evidence in support of her claim. 

The Board finds that appellant’s March 15, 2016 request for reconsideration neither 

alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

It further finds that she failed to advance a relevant legal argument not previously considered by 

OWCP. Consequently, 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).7

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

not previously considered by OWCP. In support of her request for reconsideration, appellant 

submitted documents on the effects of spinal subluxation and nerve function, forward head 

syndrome, and chiropractic care; photographs of diagnostic images; and a January 18, 2016 

report by Dr. Hagmeyer, a chiropractor. None of this evidence is relevant to the underlying 

factual issue identifying the employment factors she believed caused or aggravated her neck 

 4

 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). 

5 Id. at § 10.607(a). 

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

598 (2006).

7

 20 C.F.R. § 10.606(b)(3).
4

condition. The Board has held that evidence which does not address the particular issue involved 

does not constitute a basis for reopening a case.8

 

The Board finds that the documents appellant submitted with her request for 

reconsideration consisted primarily of medical literature. Medical literature however does not 

constitute relevant or pertinent new evidence as it is irrelevant to the issue of causal relationship 

and is not based on a physician’s medical opinion from a complete and accurate medical history 

of appellant.9 

Appellant also submitted a January 18, 2016 report from Dr. Hagmeyer, chiropractor, in 

which he diagnosed forward head syndrome. The Board has held that a chiropractor is a 

physician as defined under FECA only to the extent that the reimbursable services are limited to 

treatment consisting of manual manipulation of the spine to correct a subluxation as 

demonstrated by x-ray to exist.10 The evidence does not establish that appellant was diagnosed 

with subluxation based on the results of an x-ray. Accordingly, the Board finds that 

Dr. Hagmeyer does not qualify as a physician under FECA and his reports therefore cannot be 

considered competent medical evidence sufficient to require merit review of appellant’s claim.11 

The Board, therefore, finds that the evidence submitted by appellant is insufficient to reopen her 

claim for a merit review. 

On appeal appellant contends that the medical evidence of record showed that her chronic 

neck condition had been aggravated by her computer work. As noted above, the Board lacks 

jurisdiction to consider the merits of the claim as the only decision before the Board is the 

March 29, 2016 nonmerit decision. Appellant’s statement attributing her condition to computer 

work is insufficient to establish the factual portion of her claim since it does not provide with 

specificity a sufficient description of her employment activities or the length or duration of the 

activities. 

CONCLUSION 

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

under 5 U.S.C. § 8128(a). 

 8 E.O., Docket No. 15-0635 (issued June 5, 2015); R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 

545 (2005). 

9 See D.B., Docket No. 10-2036 (issued May 13, 2011). 

10 Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined 

by State law. The term physician includes chiropractors only to the extent that their reimbursable services are 

limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by 

x-ray to exist and subject to regulations by the Secretary. See 5 U.S.C. § 8101(2); see also Merton J. Sills, 39 ECAB 

572, 575 (1988). 

11 A.M., Docket No. 14-125 (issued March 24, 2014). 
5

ORDER 

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

Compensation Programs dated March 29, 2016 is affirmed. 

Issued: January 25, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board