United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Romulus, MI, Employer 

__________________________________________ 

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Docket No. 17-0172 

Issued: May 16, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 November 3, 2016 appellant, through counsel, filed a timely appeal from a 

September 7, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from March 9, 2016, the date of the last merit 

decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

appellant’s claim. 

 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

 5 U.S.C. § 8101 et seq. 
2

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 December 21, 2014 appellant, then a 41-year-old transportation security officer, filed 

a traumatic injury claim (Form CA-1) alleging that on that date she injured her left hand, hip, and 

back when her chair broke, causing her to fall. 

Appellant submitted a February 12, 2015 report from Dr. Laura Heinrich, Board-certified 

in family medicine, in which Dr. Heinrich diagnosed appellant with lower back pain and visceral 

hypersensitivity syndrome. Dr. Heinrich noted that appellant had significant difficulty 

performing her work due to back pain. 

OWCP also received a February 19, 2015 report from Dr. Joel John Heidelbaugh, a 

Board-certified family practitioner, in which he noted that appellant had fallen from a broken 

chair on December 21, 2014. Dr. Heidelbaugh provided work restrictions for appellant. 

By decision dated May 8, 2015, OWCP denied appellant’s claim, finding that she had not 

established an injury causally related to the December 21, 2014 employment incident. 

On June 8, 2015 appellant requested reconsideration of OWCP’s May 8, 2015 decision. 

With her request, she submitted an April 16, 2015 report from Dr. John Yarjanian, Boardcertified in physical medicine and rehabilitation. Dr. Yarjanian noted that appellant related pain 

in her left gluteal region, left lower back, and left hip to the incident of December 21, 2014. He 

related that, while physical examination suggested pelvic obliquity and a restricted left sacroiliac 

joint, in addition to extensive myofascial restriction in the left lumbar spine, imaging had failed 

to reveal signs of a fracture or disc herniation in relation to her symptoms. Dr. Yarjanian 

concluded that, based on his clinical impression and physical examination findings, appellant’s 

subjective complaints of pain were legitimate, and substantiated by the mechanism of her fall. 

He recommended left sacroiliac joint and left facet point injections at L4-5 and L5-S1. 

By letter dated May 22, 2015, Dr. Yarjanian described that on December 21, 2014, 

appellant’s stool gave way while she was working and she fell to the ground striking her left 

gluteal region, left sacral region, and left low back to a hard cement surface. He noted that 

appellant instantaneously developed severe pain in this respective area. Dr. Yarjanian opined 

that appellant’s symptoms were causally related to this fall. As a result of the trauma sustained 

to her sacrum and lumbar spine, appellant’s left sacroiliac and left lower lumbar facet joints 

sustained trauma, and mechanical dysfunction. The mechanism of her fall was in accordance 

with her symptoms and physical examination findings. 

By decision dated August 24, 2015, OWCP reviewed the merits of appellant’s claim and 

denied modification of its May 8, 2015 decision. It explained that Dr. Yarjanian had not offered 

an opinion as to causal connection between a diagnosed medical condition and the employment 
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incident of December 21, 2014. Drs. Heinrich and Yarjanian related only her symptoms of pain 

to the employment incident. 

On December 14, 2015 appellant, through counsel, requested reconsideration of OWCP’s 

August 24, 2015 decision. Also submitted was a letter dated December 2, 2015 from 

Dr. Yarjanian explaining that, when appellant fell, she struck her left buttock and pelvis against a 

hard concrete floor, causing upward force on the pelvis, and this lead to a dysfunction of the left 

sacroiliac joint. The sacroiliac joint has been hypo-mobile and restricted since this fall. As a 

result of the fall, a pelvic obliquity occurred, subsequently causing compensatory curvature of 

her lumbar spine. This has led to regional muscle strain, and localized pain at the left lower 

lumbar facet joints. Physical examination findings have substantiated appellant’s pain 

complaints. Appellant has evidence of restricted motion at the left sacroiliac joint, with 

displacement of her left innominate (iliac crest) in a superior position. Her lower lumbar pain 

worsens on extension, consistent with pain emanating from the lower lumbar facet joints as a 

result of this fall. 

By decision dated March 9, 2016, OWCP reviewed the merits of appellant’s claim and 

denied modification of its prior decision of August 24, 2015. It stated that its May 8, 2015 

decision determined that dysfunction of the left sacroiliac joint and pelvic obliquity were 

descriptions of conditions and not definitive medical diagnoses. 

On August 15, 2016 appellant, through counsel, requested reconsideration of OWCP’s 

March 9, 2016 decision. With the request, appellant submitted a June 21, 2016 letter from 

Dr. Yarjanian, in which he provided ICD-10 and ICD-9 codes for the diagnoses of sacroiliac 

dysfunction, pelvic obliquity, lumbar facet arthropathy, and myofascial pain. Dr. Yarjanian 

reiterated that he maintained that the description provided in his December 2, 2015 letter 

sufficiently explained the mechanism of appellant’s injury as it related to the December 21, 2014 

incident.” 

By decision dated September 7, 2016, OWCP denied appellant’s request for 

reconsideration. It found that Dr. Yarjanian’s June 21, 2016 letter was cumulative evidence, in 

that he continued to provide the same assessments as in his prior reports, with the addition of 

lumbar facet arthropathy. OWCP also found that the addition of ICD-9 and ICD-10 codes 

corresponding with identified symptoms and conditions was insufficient to warrant formal 

review of the claim, as these were just codes, and did not address the pending issue in question, 

which was the causal relationship between the employment incident and a definitively diagnosed 

medical condition. 

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.3

 Section 10.608(b) of OWCP’s regulations 

 3

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 
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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.4

ANALYSIS 

OWCP issued a decision on March 9, 2016 finding that appellant had not submitted 

sufficient evidence to establish a causal relationship between the accepted employment incident 

of December 21, 2014 and a definitively diagnosed medical condition. By letter dated 

August 15, 2016, appellant requested reconsideration. With her request, she submitted a 

June 21, 2016 letter from Dr. Yarjanian. OWCP denied appellant’s request for reconsideration 

by decision dated September 7, 2016. 

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. 

The Board finds that in her May 12, 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, appellant 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 evidence to establish a 

causal relationship between the accepted employment incident of December 21, 2014 and a 

diagnosed medical condition. A claimant may be entitled to a merit review by submitting new 

and relevant evidence. Dr. Yarjanian’s June 21, 2016 letter containing ICD-9 and ICD-10 

diagnostic codes qualifies as pertinent new and relevant evidence. OWCP, in its March 9, 2016 

decision, stated that its May 8, 2015 decision determined that dysfunction of the left sacroiliac 

joint and pelvic obliquity were descriptions of conditions and not definitive medical diagnoses. 

Dr. Yarjanian’s June 21, 2016 letter, by including the ICD-9 and ICD-10 diagnostic codes, 

correctly indicated that appellant’s dysfunction of the left sacroiliac joint and pelvic obliquity 

qualified as medical diagnoses and not merely descriptions of symptoms. 

As such, the Board finds that OWCP improperly declined to reopen appellant’s claim for 

a review of the merits in its September 7, 2016 decision. Dr. Yarjanian’s June 21, 2016 letter 

contained relevant information not previously considered by OWCP. The letter is not 

duplicative of his earlier reports, as it added additional information supporting the fact that 

dysfunction of the left sacroiliac joint and pelvic obliquity qualified as medical diagnoses, and 

not merely description of symptoms. Because the letter of June 21, 2016 contained relevant 

information not previously considered by OWCP, OWCP was required to reopen the case for 

merit review upon reconsideration. 

The Board accordingly finds that appellant met the third above-noted requirement of 20 

C.F.R. § 10.606(b)(3) in her reconsideration request of August 15, 2016. Appellant submitted 

relevant and pertinent evidence not previously considered. Thus, pursuant to 20 C.F.R. § 10.608, 

OWCP improperly denied merit review. 

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

The Board finds that OWCP improperly 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 September 7, 2016 decision of the Office of 

Workers’ Compensation Programs is vacated and this case is remanded for further proceedings 

consistent with this opinion, to be followed by an appropriate decision. 

Issued: May 16, 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