United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.A., Appellant 

and 

DEPARTMENT OF THE ARMY, 

Fort Drum, NY, Employer 

__________________________________________ 

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Docket No. 17-0535 

Issued: June 27, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 10, 2017 appellant filed a timely appeal from an August 29, 2016 nonmerit 

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

elapsed from the last merit decision dated June 1, 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. 

ISSUE 

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

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

FACTUAL HISTORY 

On August 25, 2014 appellant, then a 60-year-old administrative clerk, filed a claim for a 

recurrence of disability (Form CA-2a) commencing July 23, 2014 due to a January 10, 2000 

 1

 5 U.S.C. § 8101 et seq. 
2

employment injury.2

 She alleged that she had increased back pain due to a change in her 

modified job, which required her to engage in more up and down movements and required more 

paperwork. Appellant was also required to be on her feet more, and sit for longer periods of 

time. OWCP determined appellant had alleged a new injury as she was alleging new 

employment factors and converted appellant’s recurrence claim to an occupational disease claim 

(Form CA-2). 

Appellant submitted evidence in support of her claim. 

In a June 18, 2013 report, Dr. Paul S. Curtis, a treating Board-certified orthopedic 

surgeon, noted that appellant had been seen for complaints of back pain. Physical examinations 

findings were provided and diagnoses included lumbar intervertebral disc degeneration, 

lumbago, and lumbar intervertebral disc displacement without myelopathy. Dr. Curtis checked a 

box marked “yes” indicating that appellant’s complaints were consistent with her injury history. 

In a June 30, 2014 pain clinic report, Dr. John J. Wasenko, an examining Board-certified 

neuroradiologist and diagnostic radiologist, reported that appellant had been seen for complaints 

of pain. He conducted a physical examination, reviewed appellant’s diagnostic testing and 

diagnosed L3-4 and L4-5 diffuse disc bulges with minimal thecal sac compression, which he 

noted as a new finding, L5-S1 diffuse disc bulge abutting the thecal sac, grade 1 L5 

spondylolisthesis on S1 associated with L5 pars defects, and L5 nerve compression in the neural 

foramina. 

Dr. Curtis, in disability certificates dated July 23 and August 13, 2014, related that 

appellant was currently disabled from work. Under remarks on July 23, 2014, he noted that 

appellant had complained of increased back pain radiating down her leg, that appellant was 

awaiting a pain clinic appointment, and that a magnetic resonance imaging (MRI) scan was 

scheduled for July 28, 2014. Dr. Curtis reiterated appellant’s diagnoses. 

In an October 17, 2014 letter, OWCP informed appellant that the evidence of record was 

insufficient to support her claim. It advised her regarding the medical and factual evidence 

required to support her occupational disease claim and afforded her 30 days to submit the 

requested evidence. 

In response to OWCP’s October 17, 2014 development letter, it received reports dated 

September 24 and October 21, 2014 from Dr. Curtis. Dr. Curtis reiterated physical examination 

findings and conclusions from his prior June 18, 2013 report. 

By decision dated November 26, 2014, OWCP denied appellant’s claim. It found the 

evidence insufficient to establish a causal relationship between the diagnosed condition and the 

accepted work factors identified by appellant. 

In a November 25, 2014 report, Dr. Curtis noted that appellant has been off work due to 

her acute low back pain. He provided examination findings and diagnosed lumbago, acquired 

 2

 This recurrence claim was for a claim previously filed under OWCP File No. xxxxxx493 when appellant was 

employed as a lead education technician. 
3

spondylolisthesis, lumbar intervertebral disc displacement without myelopathy, lumbar 

intervertebral disc degeneration, and lumbar sprains and strains. Dr. Curtis checked a box 

marked “yes” indicating that appellant’s complaints were consistent with her injury history. 

On December 20, 2014 appellant requested a review of the written record by an OWCP 

hearing representative. 

On December 24, 2014 OWCP received reports dated May 14, 2012 and September 24, 

2014 and a May 3, 2012 disability note from Dr. Curtis, which provided appellant’s program. 

Dr. Curtis opined that her reinjury was a consequential injury. He explained that, while 

appellant’s cervical symptoms had resolved, she continued to have significant low back pain, 

which was aggravated by her work activity. Due to the significant aggravation of her low back 

condition by her work activity, Dr. Curtis determined that she was disabled from work because 

she could not perform the duties of her position. He also restated appellant’s diagnoses. 

In reports dated January 7 and March 23, 2015, Dr. Curtis related appellant’s diagnoses. 

He noted the history of appellant’s original injury in the January 7, 2015 report and noted 

changes in her job description. Dr. Curtis noted that appellant worked on a lower desk in 2012, 

which required constant moving from one level to the next, bending, and twisting. He also noted 

that her position required sitting for longer periods of times, which he opined significantly 

increased appellant’s symptoms. 

In an April 4, 2015 narrative statement, appellant noted that she has been disabled from 

work since April 23, 2014 and that her disability has been verified by her physicians. She argued 

that medical evidence established that her diagnosed conditions were aggravated by her work 

and that her claim should be accepted. 

In a June 1, 2015 decision, an OWCP hearing representative affirmed the November 26, 

2014 decision denying appellant’s claim. He found the reports from Dr. Curtis insufficient to 

establish appellant’s claim as he had failed to provide sufficient medical rationale explaining 

how appellant’s diagnosed conditions had been caused or aggravated by the identified work 

factors. 

Appellant requested reconsideration on May 23, 2016. She provided a history of her 

injury and medical treatment and contended that her back condition had been aggravated by her 

employment. Appellant contended that OWCP erred in denying her compensable claim. 

In support of her request, appellant submitted a March 25, 2015 computer workstation 

ergonomic evaluation, which recommended changes to appellant’s workstation to provide better 

ergonomic environment and better lumbar support. An April 3, 2015 memorandum from the 

employing establishment’s Chief of Industrial Hygiene Preventive Medicine, instructed that the 

recommendations made in the March 25, 2015 report be implemented. 

In a statement dated April 4, 2016, appellant’s supervisor stated that she had supervised 

appellant since June 2013 and she had been out on unpaid leave since July 2014 due to her back 

complaints. He related that upon appellant’s return to work in March 2015 an ergonomic study 

was requested. Based on findings from the study, appellant’s work station was redesigned, an 

ergonomic chair ordered, and new anti-fatigue floor mat provided for her work station. 
4

By decision dated August 29, 2016, OWCP denied appellant’s request for 

reconsideration. It found that the factual statements and ergonomic evaluation submitted were 

immaterial to the underlying issue of causal relationship, which was a medical issue. 

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 

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 

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

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

Appellant disagreed with OWCP’s denial of her occupational disease claim. The 

underlying issue in this case is whether appellant submitted medical evidence establishing that 

her back pain, lumbar intervertebral disc degeneration, lumbago, and lumbar intervertebral disc 

displacement without myelopathy was causally related to the accepted factors of her federal 

employment. That is a medical issue which must be addressed by relevant, new medical 

evidence.7

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law. Moreover, she did not advance a relevant legal argument not previously considered. 

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).8

 She merely argued that she 

submitted substantial medical evidence regarding her back condition and relationship to her 

employment. 

 3 Supra note 1. 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. 

4

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (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. 08-0440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).

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

8

 20 C.F.R. § 10.606(b). 
5

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

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

on reconsideration included an April 4, 2016 statement from her supervisor, appellant’s May 12, 

2016 statement, a March 25, 2015 ergonomic evaluation report, and April 3, 2015 memorandum 

from the employing establishment regarding the March 25, 2015 ergonomic report. The 

underlying issue was whether appellant’s back conditions had been caused or aggravated by the 

accepted employment factors. The evidence appellant submitted was not relevant to the issue of 

causal relationship because it was not medical evidence, but factual information.9

 The evidence, 

therefore, is insufficient to require merit review of the claim.10

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 submit 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 her claim under 5 U.S.C. § 8128(a).11

On appeal appellant contends that she is entitled to acceptance of her claim and wage-loss 

compensation from July 23, 2014 to March 23, 2015. As explained above, the Board lacks 

jurisdiction to review the merits of her claim. 

CONCLUSION 

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

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

 9 Supra note 7. 

10 D.L., Docket No. 16-0342 (issued July 26, 2016); D’Wayne Avila, 57 ECAB 642 (2006). 

11 See L.H., 59 ECAB 253 (2007); Susan A. Filkins, 57 ECAB 630 (2006) 
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ORDER 

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

Compensation Programs dated August 29, 2016 is affirmed. 

Issued: June 27, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board