United States Department of Labor

Employees’ Compensation Appeals Board

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T.D., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

AIR FORCE MATERIEL COMMAND, 

HILL AIR FORCE BASE, UT, Employer

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Docket No. 16-1644

Issued: October 3, 2017

Appearances: Case Submitted on the Record

David J. Holdsworth, Esq., for the appellant1

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 August 9, 2016 appellant, through counsel, filed a timely appeal from a March 16, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more 

than 180 days elapsed from OWCP’s last merit decision, dated April 24, 2015, to the filing of 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated 

March 3, 2017, the Board exercised its discretion and denied the request as appellant’s arguments on appeal could 

be adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying 

Request for Oral Argument, Docket No. 16-1644 (issued March 3, 2017).
2

this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.4

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 March 12, 2015 appellant, a 53-year-old machinist, filed a traumatic injury claim 

(Form CA-1) alleging that she ruptured the posterior tibial tendon on her right ankle/foot on 

September 29, 2014 while operating a cylindrical grinder in a hydraulic cell. She indicated that 

she was setting up a new part when the inside of her right ankle began to hurt due to twisting and 

standing at the machine. Appellant stopped work on the date of injury, but then returned to fulltime regular duty, without restrictions, on November 6, 2014.

By decision dated April 24, 2015, OWCP denied the claim as appellant had failed to 

establish fact of injury. It found that the medical evidence of record did not contain a valid 

diagnosis causally related to the accepted September 29, 2014 employment incident. Thus, fact 

of injury was not established.

On August 19, 2015 appellant requested reconsideration and submitted additional 

evidence in support of her claim.

By decision dated August 31, 2015, OWCP denied appellant’s request for reconsideration 

without conducting a merit review because she failed to advance a relevant legal argument or 

submit any relevant and pertinent new evidence.

On November 16, 2015 appellant again requested reconsideration for a second time and 

submitted a narrative statement indicating that she had previously sustained a work injury on 

October 14, 2004, under OWCP File No. xxxxxx367, which had worsened over the years due to 

repetitive motion and working on a concrete floor. She also submitted additional evidence, 

including a July 15, 2015 report from Dr. Kevin Walker, a podiatrist, who noted that appellant 

was being seen for orthopedic aftercare due to right foot surgery, which had been put on hold due 

to heart surgery following a heart attack. On October 7, 2015 Dr. Walker diagnosed bilateral 

foot pain and noted that appellant had chronic pain caused by a previous trauma that occurred 11 

years before when she lost part of her aspect of the foot. He reported that appellant underwent 

surgery to repair her posterior tibial tendon area and now she was having left posterior and 

tendon pain due to the chronic nature of her pain. Dr. Walker opined that appellant was not 

capable of weight-bearing at work. 

 

3

5 U.S.C. § 8101 et seq.

4 The record provided the Board includes evidence received after OWCP issued its March 16, 2016 decision. 

However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued 

its final decision. 20 C.F.R. § 501.2(c)(1).
3

By decision dated November 19, 2015, OWCP denied appellant’s request for 

reconsideration without conducting a merit review because she failed to advance a relevant legal 

argument or submit any relevant and pertinent new evidence.

On February 15, 2016 appellant, through counsel, requested reconsideration for a third 

time and submitted additional evidence.5

In an October 27, 2014 report, Dr. Walker diagnosed acute pain of the lower extremity, in 

particular pain in the posterior tibial tendon and navicular area. On October 31, 2014 he

diagnosed posterior tibial tendon tear of the right foot and reported that he had performed a 

repair surgery that day. Appellant submitted progress reports dated December 17, 2014 through 

December 29, 2015 from Dr. Walker who provided light-duty work restrictions. In a March 9, 

2015 report, Dr. Walker noted that on or about September 2014 appellant suffered an injury at 

work from repetitive motion. He explained that appellant’s position required continuous 

standing and rotating, which placed further strain on her injured tendon that was already under 

stress from a prior work injury to the same foot which resulted in the loss of her pinky toe. 

Dr. Walker also noted that he believed the loss of appellant’s balancing toe due to a previous 

work injury was a major contributing factor in the tearing of her ankle tendon. On December 29, 

2015 he reiterated his opinion that appellant’s work-related accident in 2004, which resulted in 

the loss of her pinky toe, may have caused her instability and severe right foot and ankle pain. 

Appellant further submitted OSHA 301 forms dated March 11, 2015 and resubmitted 

reports from Dr. Walker dated July 15 and October 7, 2015.

By decision dated March 16, 2016, OWCP denied appellant’s request for reconsideration 

without conducting a merit review because she failed to advance a relevant legal argument or 

submit any relevant and pertinent new evidence.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.8 A timely application for reconsideration, including all supporting documents, must set 

 

5 Counsel submitted the appeal request form that accompanied the April 24, 2015 merit decision, which OWCP 

received on February 15, 2016. 

6 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
4

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

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

considered by OWCP.9 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.10

ANALYSIS

On reconsideration counsel submitted the appeal request form that accompanied the 

April 24, 2015 decision. Apart from requesting reconsideration, he did not elaborate on the basis 

for the request. Accordingly, the Board finds that the February 15, 2016 request for 

reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a 

specific point of law. Additionally, the Board finds that appellant did not advance a relevant 

legal argument not previously considered by OWCP. Consequently, appellant is not entitled to 

further review of the merits of her claim based on the first and second above-noted requirements 

under section 10.606(b)(3).

Appellant also failed to submit relevant and pertinent new evidence not previously

considered by OWCP. Along with her reconsideration request, appellant submitted reports dated 

October 27, 2014 through December 29, 2015 from Dr. Walker who diagnosed posterior tibial 

tendon tear of the right foot and performed a repair surgery on October 31, 2014. Dr. Walker 

stated that he believed the loss of appellant’s balancing toe due to a work-related accident in 

2004, which resulted in the loss of her pinky toe, was a major contributing factor in the tearing of 

her ankle tendon and opined that it may have caused her condition. The Board finds that 

submission of this evidence did not require reopening appellant’s case for merit review as it 

failed to address the issue of causal relationship between appellant’s right ankle condition and 

the September 29, 2014 employment incident, which was the issue before OWCP.11 Therefore, 

this evidence does not constitute relevant and pertinent new evidence and is insufficient to 

require OWCP to reopen the claim for consideration of the merits.

Appellant also resubmitted reports from Dr. Walker dated July 15 and October 7, 2015. 

The Board finds that the submission of this evidence did not require reopening appellant’s case 

for merit review because appellant had submitted the same evidence, which was previously 

reviewed by OWCP in its November 19, 2015 decision. As the documents repeat evidence 

already in the case record, it is duplicative and does not constitute relevant and pertinent new 

evidence. Thus, appellant has not established a basis for reopening her case.12

 

9

20 C.F.R. § 10.606(b)(3).

10 Id. at § 10.608(a), (b).

11 The Board has held that the submission of evidence or argument which does not address the particular issue 

involved does not constitute a basis for reopening a case. See J.W., Docket No. 17-0952 (issued September 1, 

2017); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

12 See D.K., 59 ECAB 141 (2007).
5

In support of her request for reconsideration, appellant submitted OSHA 301 forms dated 

March 11, 2015. The Board finds that submission of these documents did not require reopening 

appellant’s case for merit review as they do not address whether appellant’s right ankle condition 

is causally related to the September 29, 2014 employment incident, which was the issue before 

OWCP.13 Therefore, these documents do not constitute relevant and pertinent new evidence and 

are insufficient to require OWCP to reopen appellant’s claim for consideration of the merits in 

accordance with the third above-noted requirement under section 10.606(b)(3).14

The Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits of her claim pursuant to any of the three requirements under section 

10.606(b)(3) and properly denied her request for reconsideration.

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).

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 3, 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

 

13 See 5 U.S.C. § 8101(2). See also Paul Foster, 56 ECAB 208, 212 n.12 (2004).

14 See V.H., Docket No. 15-1262 (issued March 18, 2016).