United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Asheville, NC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0069 

Issued: June 20, 2016 

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 October 13, 2015 appellant filed a timely appeal from an August 5, 2015 nonmerit 

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

has elapsed from the last merit decision, dated August 1, 2014, and 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 the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s requests for further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This is the second appeal before the Board in this case. The facts and circumstances of 

the case as set forth in the prior decision are incorporated herein by reference. The relevant facts 

are set forth below. 

On March 6, 2014 appellant, then a 32-year-old vending clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on January 22, 2014 four bottles of frozen soda fell from a 

vending machine he was working on, causing a crush injury to his right foot. His supervisor 

controverted the claim, asserting that the vending machine did not freeze the bottles. Also, 

appellant was involved in an “incident prior where he said product had fallen and video showed 

this was not the case....” He initially reported the injury after his employment was terminated. 

In a March 10, 2014 letter, OWCP advised appellant to submit factual evidence 

corroborating the January 22, 2014 incident, and medical evidence diagnosing a right foot injury 

caused by that incident. It afforded him 30 days to submit such evidence. Appellant did not 

provide additional evidence prior to April 15, 2014. 

By decision dated April 15, 2014, OWCP denied the claim as fact of injury was not 

established. It found that the factual record did not support that the January 22, 2014 incident 

occurred at the time, place, and in the manner alleged. 

Appellant requested reconsideration on May 21, 2014, asserting that he was still under 

medical treatment. He provided an April 11, 2014 patient intake form and reports from April 28 

to June 9, 2014 from a physician assistant. Appellant also submitted a July 7, 2014 report from 

Dr. Mark R. Hedrick, an attending Board-certified orthopedic surgeon, who related appellant’s 

account of a “large frozen bottle type object” falling on his right foot on January 22, 2014. 

Dr. Hedrick noted appellant’s vague pain complaints in the absence of any abnormal findings. 

He opined that appellant would recover fully 6 to 12 months from the date of injury. 

By decision dated August 1, 2014, OWCP denied modification of its prior decision, 

finding that although Dr. Hedrick established a crush injury of the right foot, his opinion did not 

overcome the factual inconsistencies in the claim. 

Appellant again requested reconsideration on April 19, 2014. He did not submit 

additional evidence. 

By decision dated August 25, 2014, OWCP denied reconsideration as appellant’s 

April 19, 2014 letter, the only evidence submitted in support of the request, did not contain 

pertinent and relevant new evidence or raise a substantive legal question. Appellant then 

appealed to the Board. 

By decision and order issued May 26, 2015,2

 the Board affirmed the August 1, 2014 

decision denying the traumatic right foot injury, and the August 25, 2014 decision denying 

reconsideration. The Board found that there was insufficient evidence that the January 22, 2014 

 2

 Docket No. 15-0093 (issued May 26, 2015). 
3

incident occurred as alleged. The Board further found that OWCP properly denied 

reconsideration as appellant did not submit new, relevant evidence or argument in support of his 

April 19, 2014 request. 

In a July 31, 2015 letter, appellant requested reconsideration. He provided employing 

establishment health unit chart notes by a physician assistant, dated from January 23 to 

February 20, 2014. The January 23, 2014 note indicated that “about 9:30 yesterday” appellant 

was loading a soft drink machine when four 20 ounce bottles fell onto his right foot. 

By decision dated August 5, 2015, OWCP denied reconsideration, finding that 

appellant’s July 31, 2015 letter and the accompanying documents did not constitute new, 

relevant evidence. 

LEGAL PRECEDENT 

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

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides 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.4

 Section 10.608(b) 

provides that when an application for review of the merits of a claim does not meet at least one 

of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.5 

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.6 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.7

 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.8 

ANALYSIS 

Appellant requested reconsideration by a July 31, 2015 letter. In support of his request, 

he submitted chart notes from a physician assistant providing a narrative of the alleged incident. 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

6 Helen E. Tschantz, 39 ECAB 1382 (1988). 

7 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

8 Annette Louise, 54 ECAB 783 (2003). 
4

The Board finds that OWCP improperly denied reconsideration as appellant submitted 

pertinent new evidence in support of his claim that OWCP had erred by failing to accept the 

claimed January 22, 2014 employment incident as factual. On July 31, 2015 OWCP received an 

employee health record report completed by a physician assistant. The January 23, 2014 note 

indicated that on the previous day appellant had injured his right foot when four 20-ounce soft 

drink bottles fell onto his right foot. Additionally, it noted that appellant presented with a foot 

contusion over the distal 4th metatarsal without swelling. This document is new and it is relevant 

because it provides a contemporaneous history of the claimed injury occurring the day before 

that is consistent with the history provided by appellant. Moreover, the report listed his job title 

as a vending clerk. The claimed injury was reportedly from bottles falling from a vending 

machine which was seemingly within his job duties. Appellant eventually filed his claim for 

injury several months after the incident and physician assistant report. While the report of a 

physician assistant is not competent medical evidence,9 fact of incident is not a medical question 

requiring a physician’s opinion. The Board has held that statements of laypersons may be used 

to evaluate a claim of incident.10 In this case, the health record by the physician assistant is new 

and relevant regarding fact of incident and is sufficient to warrant a merit review. The case will 

be remanded to OWCP for reconsideration of the merits of the claim, to be followed by issuance 

of an appropriate merit decision. 

On appeal appellant asserts that he was injured on duty and received medical care, but 

that the employing establishment filed a false statement denying that the January 22, 2014 

incident occurred as alleged. As set forth above, the case will be remanded to OWCP for 

issuance of an appropriate merit decision. 

CONCLUSION 

The Board finds that OWCP improperly denied reconsideration under section 8128(a) of 

FECA. Appellant submitted pertinent new and, relevant evidence on reconsideration warranting 

a review of the merits of the claim. 

 9

 The Board notes that physician assistants are not physicians under FECA. See 5 U.S.C. § 8101(2). Ricky S. 

Storms, 52 ECAB 349 (2001). As these chart notes were not signed or reviewed by a physician, they cannot 

constitute medical evidence in this case. See J.S., Docket No. 15-1389 (issued October 16, 2015). 

10 Pearlene Morton, 52 ECAB 493 (2001). See Thelma Rogers, 42 ECAB 866 (1991) (where the Board held that 

an employee’s statement alleging that an injury occurred at a given time and in a given manner is of great probative 

value and will stand unless refuted by strong or persuasive evidence). See also Connie E. Hollander, Docket No. 

94-2350 (issued July 16, 1996) (where the Board noted that the opinion of a nurse could have probative value in 

establishing that an employment incident occurred). 
5

ORDER 

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

Compensation Programs dated August 5, 2015 is set aside, and the case remanded for additional 

development consistent with this decision and order. 

Issued: June 20, 2016 

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