United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF THE ARMY, CORPS OF 

ENGINEERS, Fort Riley, KS, Employer 

__________________________________________ 

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Docket No. 16-1235 

Issued: August 9, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 25, 2016 appellant filed a timely appeal from an April 1, 2016 nonmerit decision 

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

since the last merit decision dated July 13, 2015 and the filing of this appeal on May 25, 2016, 

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 the case. 

ISSUE 

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

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

On appeal appellant contends that he is entitled to medical expenses for an examination 

after his accepted employment-related motor vehicle accident, as his supervisor strongly 

recommended that he seek medical attention before returning home from his out-of-town work 

assignment. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On February 18, 2015 appellant, then a 28-year-old construction representative, filed a 

traumatic injury claim (Form CA-1) alleging that on February 12, 2015 the government vehicle 

he was driving was “rear ended” while stopped at an intersection. He noted that, after the 

accident, he had a slight headache and pain in his jaws because his jaws clamped shut rapidly 

during the collision. Appellant did not submit any evidence with his claim. 

By letter dated February 20, 2015, OWCP advised appellant that further medical 

evidence was necessary to establish his claim. Appellant was afforded 30 days to submit the 

necessary evidence. 

Appellant did not respond to the February 20, 2015 OWCP request for further medical 

evidence. 

By decision dated March 25, 2015, OWCP denied appellant’s claim. While OWCP 

accepted that the incident had occurred as alleged, it denied the claim as there was no medical 

evidence diagnosing a condition causally related to the accepted work event. 

On April 27, 2015 appellant requested reconsideration. He explained that the accident 

occurred on February 12, 2015 in Lackawanna, New York, and that he wanted medical 

verification that he did not have a concussion before he traveled home. Appellant noted that no 

evidence of a concussion was discovered. He submitted, inter alia, notes from Western New 

York Immediate Care, which related that appellant was evaluated by Dr. Dawn Bingeman, 

Board-certified in emergency medicine, and that he had a normal examination. Appellant was 

released to regular duties without restrictions. 

By decision dated July 13, 2015, OWCP denied modification of appellant’s claim, as the 

medical evidence was devoid of a definitive diagnosis or any opinion explaining how a claimed 

condition was related to the Feburary12, 2015 employment incident. 

On March 22, 2016 appellant again requested reconsideration. He asked OWCP to 

reconsider his request for payment of a medical bill that was the result of a medical checkup that 

his supervisor strongly recommended he obtain after he was in the motor vehicle accident. In 

support thereof, appellant submitted a sworn statement from his supervisor, indicating that he 

was his employee, that he was in an automobile accident when his government vehicle was 

struck from behind while waiting at a traffic light, and that the impact damaged the vehicle to the 

extent that it was a total loss. His supervisor contended that he strongly recommended that 

appellant be evaluated by a medical professional prior to allowing himself to drive from 

Lackawanna, New York, to his duty station in Ohio, as he was concerned about a concussion or 

potentially a traumatic brain injury. He noted that appellant was advised by the attending 

physician that he would be allowed to drive. 

By decision dated April 1, 2016, OWCP denied reconsideration because the new 

evidence was not sufficient to warrant review of the July 13, 2015 decision which denied 

appellant’s claim. 
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 the evidence or argument submitted by 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’s application for review must 

be received 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 

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). 

The underlying issue in this case is whether appellant submitted sufficient medical 

evidence establishing an injury causally related to the accepted February 12, 2015 employment 

incident. That is a medical issue which must be addressed by relevant, new medical evidence.6

With his request for reconsideration, appellant explained that he had sought medical 

evaluation at the hospital emergency room following the accepted motor vehicle collision at the 

request of his supervisor, because the collision occurred while he was driving from his work site 

in Lackawanna, New York to his duty station in Ohio. He submitted a sworn statement from his 

supervisor substantiating that he strongly recommended that appellant be evaluated by a medical 

professional before driving back to the duty station as there was concern that appellant may have 

sustained a concussion or a traumatic brain injury. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered. His allegations are not relevant to the issue of whether the 

medical evidence of record establishes a diagnosed condition causally related to the accepted 

incident. Consequently, appellant was not entitled to a review of the merits of the claim based 

on the first and second above-noted requirements under section 10.606(b).7 

 2 Id. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” Id. at § 8128(a). 

3 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 Bobbie F. Cowart, 55 ECAB 746 (2004). 

7

 20 C.F.R. § 10.606(b). 
4

As to the submission of relevant and pertinent new evidence not previously considered by 

OWCP, the Board also finds that appellant failed to meet this requirement. The evidence 

submitted on reconsideration consisted of a sworn statement from his supervisor relating that he 

had recommended that appellant be evaluated by a medical professional prior to allowing 

himself to continue his ride home from Lackawanna, New York to his duty station in Ohio. The 

underlying issue was whether appellant had a diagnosed condition caused by the accepted 

employment factors. This evidence was not relevant to the issue of causal relationship because it 

was not medical evidence, but factual information.8 OWCP properly explained in the April 1, 

2016 decision that the evidence appellant submitted in support of his request for reconsideration 

was new; however, it was immaterial, irrelevant, and inconsequential to the underlying issue. 

The evidence, therefore, is insufficient to require merit review of the claim.9

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 constitute relevant and pertinent new evidence not previously considered. 

Pursuant to 20 C.F.R. § 10.608, OWCP properly denied appellant’s request for reconsideration 

of the merits of his claim under 5 U.S.C. § 8128(a).10

CONCLUSION 

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

the merits of the claim pursuant to 5 U.S.C. § 8128(a).11 

 8 D.A., Docket No. 17-0535 (issued June 27, 2017). 

9 Supra note 6. 

10 Supra note 8.

11 20 C.F.R. § 10.304 of OWCP’s regulations provides that in unusual or emergency circumstances OWCP may 

approve payment for medical expenses incurred otherwise than as authorized by 20 C.F.R. § 10.300. The Board has 

held that OWCP may approve payment for medical expenses incurred even if a CA-16 form authorizing medical 

treatment and expenses has not been issued and the claim is subsequently denied. Payment in such situations must 

be determined on a case-by-case basis. See R.S., Docket No. 16-0142 (issued February 25, 2016). On return of the 

case record OWCP shall determine whether given the emergency circumstance of this case it may approve 

appellant’s medical expense. 
5

ORDER 

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

Compensation Programs dated April 1, 2016 is affirmed. 

Issued: August 9, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board