United States Department of Labor

Employees’ Compensation Appeals Board

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D.R., Appellant

and

DEPARTMENT OF THE ARMY, MEDICAL 

COMMAND, Fort Benning, GA, Employer

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Docket No. 18-0357

Issued: July 2, 2018

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 December 11, 2017 appellant filed a timely appeal from a July 21, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from the last merit decision, dated June 9, 2017, 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 over the merits of this claim. 

 

1

In his application for review (Form AB-1), appellant identified a June 9, 2017 merit decision as the subject of the 

current appeal. The appeal is dated December 4, 2017, and the postmark on the envelope is illegible. The Clerk of 

the Appellate Boards received the appeal on December 11, 2017, which is more than 180 days after OWCP issued its 

June 9, 2017 decision. See 20 C.F.R. § 501.3(e). As the postmark is illegible and there is no other evidence, such as 

a certified-mail receipt, certificate of service, or an affidavit, to establish the mailing date, the Board considers the 

date of appeal to be December 11, 2017. Id. at § 501.3(f)(1).

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 his claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On April 26, 2017 appellant, then a 57-year-old cook leader, filed a traumatic injury claim 

(Form CA-1) for a torn (left) rotator cuff that allegedly occurred at work on March 27, 2017 while 

“pulling chair out from a table to sit down.” He stopped work on March 27, 2017 and resumed 

work on March 29, 2017. On the claim form appellant’s supervisor, C.H., did not challenge the 

claim and noted that appellant was injured in the performance of duty by placing a check in a box 

marked “yes.” The claim form was not accompanied by additional factual information or any 

medical evidence.

On April 27, 2017 an employing establishment injury compensation specialist challenged 

appellant’s entitlement to continuation of pay. She also argued that the current record did not 

establish fact of injury (medical component) or causal relationship.

By development letter dated May 1, 2017, OWCP requested that appellant respond to an 

attached questionnaire and submit medical evidence in order to establish his claim. Appellant was 

afforded 30 days to submit the requested information.

In a May 12, 2017 statement, appellant described the claimed March 27, 2017 incident at 

work, the pain and symptoms he experienced, and the medical treatment he received. He also 

indicated that he had prior surgery on April 4, 2016 that consisted of total shoulder reconstruction.

In an April 19, 2017 narrative report, Dr. George M. McCluskey III, a Board-certified 

orthopedic surgeon, related that appellant pulled a chair out from a table with his left arm to sit 

down and felt a pop in his left shoulder. He reviewed appellant’s history and provided physical 

examination findings. Dr. McCluskey diagnosed rotator cuff tear and recommended surgery. He 

provided a work status report, which recommended no work.

On May 16, 2017 Dr. McCluskey performed a left shoulder open rotator cuff repair, 

subscapularis. The post- and preoperative diagnoses were left shoulder traumatic rotator tear and 

status post April 4, 2016 total shoulder replacement for osteoarthritis.

OWCP received several medical reports by Dr. McCluskey, which predated the claimed 

March 27, 2017 employment injury. In a June 17, 2015 narrative report, Dr. McCluskey described 

appellant’s history of left shoulder pain, provided examination findings, and diagnosed left 

shoulder pain and osteoarthritis. The April 4, 2016 operative report was also provided. In 

narrative reports dated April 11 and June 15, 2016, Dr. McCluskey noted that appellant underwent 

left total shoulder replacement surgery on April 4, 2016. In a September 20, 2016 status report 

form, he indicated that appellant had been under his care since June 17, 2016.

By decision dated June 9, 2017, OWCP denied appellant’s claim because the evidence of 

record was insufficient to establish fact of injury. It found that he did not submit sufficient factual 

evidence to substantiate that the March 27, 2017 employment incident occurred as alleged. OWCP 
3

also determined that the medical evidence submitted failed to establish a diagnosis in connection 

with the alleged March 27, 2017 incident.

On July 3, 2017 appellant requested reconsideration. No other evidence was submitted 

with his request.

By decision dated July 21, 2017, OWCP denied further merit review of appellant’s claim 

under 5 U.S.C. § 8128(a). It found that appellant’s reconsideration request neither raised 

substantive legal questions nor included new and relevant evidence sufficient to warrant further 

merit review of her claim.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.3 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.4 

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.7

ANALYSIS

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

did not submit any evidence with his reconsideration request to warrant merit review under 5 

U.S.C. § 8128(a).

OWCP did not receive any additional evidence with appellant’s July 3, 2017 

reconsideration request. Accordingly, the Board finds that appellant has not shown that OWCP 

erroneously applied or interpreted a specific point of law. Moreover, appellant has not advanced 

a relevant legal argument not previously considered by OWCP or submitted relevant and pertinent 

 

3

Id. at § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4 20 CFR § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

5

Id. at § 10.607(a).

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
4

new evidence not previously considered by OWCP. The Board finds, therefore, that appellant has 

not met any of the regulatory requirements and OWCP properly declined his request for 

reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).8 

CONCLUSION

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

merits of his claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 2, 2018

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

 

8 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).