United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.N., Appellant 

and 

GENERAL SERVICES ADMINISTRATION, 

PUBLIC BUILDING SERVICE, 

Kansas City, MO, Employer 

__________________________________________ 

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Docket No. 16-1507 

Issued: January 9, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 19, 2016 appellant filed a timely appeal from a May 27, 2016 nonmerit decision 

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

from the last merit decision dated October 15, 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 to review the merits of appellant’s claim. 

ISSUE 

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

under to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 18, 2010 appellant, then a 49-year-old property manager, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained body aches and pains as a result of a 

vehicular incident on August 17, 2010. She stopped work on August 19, 2010. By decision 

dated September 14, 2010, OWCP accepted appellant’s claim for cervical strain and lumbar 

strain. Appellant received wage-loss compensation on the supplemental rolls from October 4, 

2010 through March 11, 2011. 

On February 12, 2015 appellant filed a claim for recurrence of medical treatment (Form 

CA-2a) on September 22, 2014. 

In a medical report dated April 23, 2015, Dr. Steven J. Valentino, a Board-certified 

orthopedic surgeon, diagnosed neck pain, facet mediated pain, cervical degenerative joint 

disease, cervical radiculitis, and cervical spinal stenosis. He noted that appellant’s symptoms 

were “apportioned” to the work-related injury which occurred in 2010. 

By decision dated May 20, 2015, OWCP denied appellant’s claim for recurrence of 

medical treatment. It noted that she had not submitted sufficient medical evidence to establish 

disability due to the accepted injury. 

Appellant requested a review of the written record before an OWCP hearing 

representative on June 25, 2015. By decision dated July 31, 2015, OWCP denied her request for 

a review of the written record as untimely. 

On August 11, 2015 OWCP received appellant’s request for reconsideration. With her 

request, appellant attached a narrative statement and a medical report dated June 8, 2015 from 

Dr. Valentino. In his report, Dr. Valentino reiterated his diagnoses of April 23, 2015, and added 

the condition of neck sprain and strain. He explained that appellant had symptoms following a 

work-related motor vehicle accident which occurred on August 17, 2010. Appellant was out of 

work for a few months and then conservatively returned to part-time work, followed by return to 

full-time work. In 2012 she was involved in a nonwork-related motor vehicle accident in which 

she suffered a C7 facet fracture which was treated with rest. Dr. Valentino related that appellant 

eventually returned to work following the 2012 motor vehicle accident. 

By decision dated October 15, 2015, OWCP reviewed the merits of appellant’s claim and 

affirmed its decision of May 20, 2015. It noted that Dr. Valentino’s reports were insufficiently 

rationalized to establish a claim for recurrence of medical treatment. 

On March 8, 2016 OWCP received appellant’s request for reconsideration. With her 

request, appellant attached Dr. Valentino’s April 23, 2015 report, along with a narrative 

statement. In her statement dated March 8, 2016, she argued that OWCP had not given sufficient 

weight to Dr. Valentino’s April 23, 2015 report. 

By decision dated May 27, 2016, OWCP denied appellant’s request for reconsideration of 

its decision dated October 15, 2015. It found that appellant had not submitted relevant evidence 

not previously considered in support of her request for reconsideration. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), 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.2 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration 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.3

ANALYSIS 

OWCP issued an October 15, 2015 decision, finding that appellant had not submitted 

sufficient medical evidence to support a recurrence of medical treatment. On March 8, 2016 

appellant requested reconsideration of this decision. With her request, appellant submitted a 

narrative statement along with an April 23, 2015 report from Dr. Valentino. 

As noted above, the Board does not have jurisdiction over the merits of the October 15, 

2015 decision. The issue presented on appeal is whether appellant met any of the requirements 

of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her 

claim. In her March 8, 2016 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered. Thus, she is not entitled to a review of the merits of her 

claim based on the first and second above-noted requirements under section 10.606(b)(3). 

The underlying issue is whether appellant has submitted sufficient medical evidence to 

establish a recurrent need for medical treatment causally related to the accepted August 17, 2010 

injury. A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence. However, appellant did not submit any new and relevant evidence in this case. The 

report of Dr. Valentino dated April 23, 2015 was duplicative of evidence previously submitted 

and had already been considered in OWCP’s previous decisions. Because it had already been 

considered, it was insufficient to warrant reconsideration of appellant’s claim.4

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). 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 evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

 2

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 

3 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

4 R.B., Docket No. 13-2176 (issued February 20, 2014). 
4

CONCLUSION 

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

pursuant to 5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated May 27, 2016 is affirmed. 

Issued: January 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board