United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.A., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Honaunau, HI, 

Employer 

__________________________________________ 

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Docket No. 16-0235 

Issued: April 6, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 20, 2015 appellant filed a timely application for review from a 

September 10, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Because more than 180 days has elapsed from February 12, 2014, the date of the most 

recent merit decision, 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 further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. Facts relevant to 

this appeal are set forth below. 

OWCP accepted appellant’s August 29, 2011 claim that, while working as a laborer and 

mason, he sustained lumbar strain due to lifting rocks, cutting brush, and carrying logs in the 

performance of duty. It terminated his benefits on May 20, 2013, finding that appellant had no 

continuing residuals of his accepted lumbar strain condition. Appellant requested a hearing 

before the Branch of Hearings and Review and on February 12, 2014 the hearing representative 

affirmed the termination of compensation benefits. Thereafter appellant filed an appeal with the 

Board. By decision dated September 18, 2014, the Board affirmed the termination of benefits. 

On October 9, 2014 appellant, through counsel, requested reconsideration. With his 

request, appellant submitted medical records from a registered nurse. He also submitted the 

results of a diagnostic test of his right foot, dated October 20, 2010. Appellant also resubmitted a 

report, dated November 10, 2011, from Dr. David Brown, a Board-certified radiologist. 

In a hospital record dated April 18, 2013, Dr. Carl F. von Trampe, Board-certified in 

emergency medicine, diagnosed probable gout of appellant’s right foot. 

In a report of a surgical procedure dated September 5, 2014, Dr. Scot Murray, a Boardcertified gastroenterologist, described performing a colonoscopy on appellant with no 

complications. 

By decision dated October 21, 2014, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of his case. It found that he had not submitted any 

relevant and pertinent evidence not previously considered by OWCP. 

On December 16, 2014 appellant, through counsel, again requested reconsideration. 

In a report dated October 31, 2014, Dr. Lynn W. Puana, an internist, noted that appellant 

told her that the onset of his back pain was on September 15, 2010 due to an old injury. She 

examined him and diagnosed lumbar facet syndrome and occasional radiculitis secondary to 

lumbar spondylosis. Dr. Puana recommended potential injections, physical therapy, and 

medication. 

On October 20, 2013 Dr. Puana examined appellant and diagnosed lower back pain, 

lumbosacral spondylosis, and thoracic or lumbosacral neuritis or radiculitis. She noted that he 

had undergone a surgical procedure of bilateral lumbar median branch blocks for his back on 

October 3, 2014, and that appellant’s pain level diminished from 5 out of 10 to 3 out of 10. 

By decision dated March 18, 2015, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of his case. 

 2 A.A., Docket No. 14-1091 (issued September 18, 2014). 
3

On August 21, 2015 appellant, through counsel, again requested reconsideration. With 

his request, he resubmitted the October 31, 2014 report of Dr. Puana. Appellant also submitted 

surgical reports from September 2 and October 3, 2014 from Dr. Puana, describing successful 

surgical procedures of a right lumbar transforaminal epidural and lumbar median branch blocks, 

respectively. 

On May 13, 2015 Dr. Puana noted that appellant had pain in his bilateral lumbar back. 

She diagnosed him with lumbar facet joint pain, lumbosacral spondylosis, thoracic or 

lumbosacral neuritis or radiculitis, and low back pain. 

In a surgical report dated June 18, 2015, Dr. Puana described performing a right lumbar 

three level medial branch rhizotomy without complications. 

In a follow-up report dated July 2, 2015, Dr. Puana noted that appellant felt 90 percent 

relief after the surgical procedure. She diagnosed him with lumbar facet joint pain, lumbosacral 

spondylosis, thoracic or lumbosacral neuritis or radiculitis, and low back pain. 

By decision dated September 10, 2015, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of his case. It found that he had not submitted any 

pertinent and relevant evidence not previously considered and that, while appellant had 

submitted new medical evidence diagnosing him with numerous lumbar conditions, the medical 

reports did not explain whether this condition was causally related to his original accepted 

condition of lumbar sprain. 

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 

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 terminated appellant’s wage-loss and medical compensation by decision dated 

July 10, 2013. The Board affirmed the termination on September 18, 2014. Thereafter, he 

requested reconsideration several times from OWCP, most recently on August 21, 2015. By 

decision dated September 10, 2015, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of his case. 

 3

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

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

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 his claim. 

In his August 21, 2015 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. Thus, he is not entitled to a review of 

the merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3). 

A claimant may be entitled to a merit review by submitting new and relevant evidence; 

however, appellant did not do so in this case. The underlying issue is whether appellant met his 

burden of proof to establish continuing residuals of his work-related injury. 

While appellant submitted numerous medical reports, some of which were previously of 

record, none of the medical reports submitted on reconsideration discuss the causal relationship 

between his current symptoms and that of his work-related injury, which was found to have 

resolved. After a termination decision is issued, the burden of proof shifts to appellant to 

establish that any subsequent medical condition or disability is related to the earlier accepted 

work injury.5

 As appellant did not submit any evidence containing an explanation of the causal 

relationship between his current symptoms and the accepted injury, he did not submit any 

evidence relevant to the underlying issue of OWCP’s decision to terminate his wage-loss and 

medical compensation. As such, the reports are insufficient to warrant reconsideration of his 

claim. 

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. 

CONCLUSION 

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

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

 5 See M.H., Docket No. 13-1315 (issued November 14, 2013). 
5

ORDER 

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

Compensation Programs dated September 10, 2015 is affirmed. 

Issued: April 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board