United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

SOLICITOR, Seattle, WA, Employer

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Docket No. 17-1904

Issued: February 20, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 11, 2017 appellant filed a timely appeal from an August 11, 2017 nonmerit 

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

elapsed from OWCP’s most recent merit decision dated August 8, 2016, 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 over the merits of appellant’s claim.

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). 

On appeal appellant asserts that she submitted new and relevant evidence in support of 

her reconsideration request.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 5, 2013 appellant, then a 51-year-old legal assistant (office automation) filed a 

traumatic injury claim (Form CA-1) alleging that she strained her neck and right shoulder when 

she lifted a large box off the floor and placed it on her work chair on June 13, 2013. 

A March 23, 2013 magnetic resonance imaging (MRI) scan of the cervical spine 

demonstrated disc protrusions at C6-7 and C3-4. Dr. Thomas Buchanan, a Board-certified 

internist, noted on June 24, 2013 that appellant was seen for right shoulder pain. 

Dr. Christopher R. Howe, a Board-certified orthopedic surgeon, provided a treatment note dated 

July 9, 2013 in which he diagnosed a right C6-7 disc protrusion with possible radiculopathy. 

Dr. Alan Thomas, a Board-certified orthopedic surgeon, provided treatment notes and duty status 

reports (Form CA-17) dated July 25 and August 21, 2013 in which he described the claimed 

injury and noted that appellant had a previous left shoulder injury. He diagnosed right sprain of 

neck, right sprain of rotator cuff, and right sprain of hip and thigh. Dr. Thomas advised that 

appellant could work eight hours a day with a 10-pound weight restriction. 

In letters dated September 13, 2013, OWCP informed appellant of the evidence needed to 

establish her claim and asked the employing establishment to comment. Dr. Buchanan submitted 

treatment notes dated August 12 and September 16, 2013 describing her condition. He 

recommended physical therapy. 

By decision dated October 15, 2013, OWCP denied the claim. It found that appellant had 

established the incident occurred as alleged, but that the medical evidence was insufficient to 

establish that a medical condition had been diagnosed in connection with the incident. 

On April 21, 2014 appellant, through her then representative, requested reconsideration. 

Additional medical evidence was submitted which included an October 21, 2013 duty status 

report in which Dr. Buchanan diagnosed right sacroiliac joint sprain and cervical degenerative 

disc disease. He provided restrictions to appellant’s physical activities. An October 16, 2013 

MRI scan of the right shoulder demonstrated a partial-thickness supraspinatus tear. Dr. Thomas 

provided progress reports dated October 21 and November 6, 2013. Dr. John W. Ellis, a Boardcertified family physician, provided an impairment evaluation dated July 17, 2013, received by 

OWCP on April 21, 2014.2 He diagnosed muscle tendon unit strain of neck, deranged discs in 

the neck, right shoulder internal derangement, right sacroiliac joint strain, right iliotibial ligament 

strain, and muscle tendon unit strain of the back and iliolumbar ligament under the instant claim. 

Dr. Ellis opined that all diagnoses arose out of the course of employment. 

By decision dated July 18, 2014, OWCP denied modification of the prior decision after 

considering the merits of the claim. Appellant requested reconsideration on October 7, 2014. 

She submitted an August 7, 2014 report in which Dr. Ellis diagnosed right sprain of neck, 

herniated discs in the cervical spine, right cervical spinal nerve impingement, right shoulder 

 

2 This report was prepared for another of appellant’s claims, adjudicated by OWCP under File No. xxxxxx100. 

The instant claim was adjudicated under File No. xxxxxx729. Dr. Ellis noted a number of diagnoses under other

OWCP claims, adjudicated under File Nos. xxxxxx104 and xxxxxx635. The instant claim was adjudicated under 

File No. xxxxxx729. Only File No. xxxxxx729 is before the Board on the present appeal.
3

sprain, right shoulder suprascapularis tear, right shoulder supraspinatus tear, right shoulder labral 

tear, acromioclavicular joint arthropathy of the right shoulder, impingement of the right shoulder, 

sprain of the right hip and thigh, and traumatic arthritis of the right hip. Dr. Ellis opined that 

these were caused by the June 13, 2013 lifting incident. 

By decision dated February 11, 2015, OWCP denied modification of its prior decisions. 

Appellant again requested reconsideration on February 11, 2016. In treatment notes 

dated October 21, 2013 to October 23, 2014, Dr. Thomas reiterated his findings and conclusions. 

He performed arthroscopic rotator cuff repair of the right shoulder on January 10, 2014. A right 

hip MRI scan dated January 22, 2015 demonstrated inflammatory arthritis of the right hip joint. 

Dr. Steven Teeny, also Board-certified in orthopedic surgery and an associate of Dr. Thomas, 

provided treatment notes dated January 24, 2014 to April 21, 2015. He performed right hip 

replacement on April 6, 2015. 

By decision dated August 8, 2016, OWCP modified the prior decision to indicate that 

diagnoses in connection with the June 13, 2013 work incident had been made, but the claim 

remained3 denied because the evidence of record did not contain a well-reasoned medical 

opinion establishing a causal relationship between the diagnosed conditions and the June 13, 

2013 work incident. 

On August 8, 2017 appellant again requested reconsideration. She submitted an 

August 8, 2017 report in which Dr. Buchanan noted reviewing appellant’s medical record with 

respect to the causation of her medical conditions, including her neck sprain and cervical 

radiculopathy, her shoulder sprains and rotator cuff injuries, and her right hip and sacroiliac 

conditions. Dr. Buchanan opined that appellant’s work activities had been “a substantial 

contributing cause” of her shoulder, hip, and neck pains and operations, some as a major 

contributing cause and others by aggravation. 

By decision dated August 11, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. It found Dr. Buchanan’s report irrelevant and immaterial because he 

did not address the June 13, 2013 injury, which is at issue in this case. 

LEGAL PRECEDENT

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.4 Section 10.608(a) of OWCP’s regulations provides that a timely 

request for reconsideration may be granted if OWCP determines that the employee has presented 

evidence and/or argument that meets at least one of the standards described in section 

10.606(b)(3).5 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP 

 

3 The decision was resent to appellant on August 17 and November 3, 2016. 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.608(a).
4

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.6 Section 10.608(b) provides that, when a request for 

reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.

7

ANALYSIS

The decision before the Board in this appeal is the decision of OWCP dated August 11, 

2017 denying appellant’s application for reconsideration. 

With her August 8, 2017 reconsideration request, appellant merely indicated by a check 

on an OWCP appeal request form that she was requesting reconsideration. She, therefore, did 

not show that OWCP erroneously applied or interpreted a specific point of law or advance a 

relevant legal argument not previously considered by OWCP. Consequently, appellant was 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).8 

With respect to the third above-noted requirement under section 10.606(b)(3), the

submitted report of August 8, 2017 from Dr. Buchanan is immaterial as he does not mention the 

June 13, 2013 employment incident and instead attributes appellant’s conditions to “work 

activities” without identifying any particular activity. As noted, the present claim pertains to 

whether appellant strained her neck and right shoulder when she lifted a large box off the floor 

and placed it on her work chair on June 13, 2013. Dr. Buchanan did not address whether this 

particular incident caused or contributed to a diagnosed medical condition.

As appellant did not show that OWCP erred in applying a point of law, advance a 

relevant legal argument not previously considered, or submit relevant and pertinent new 

evidence not previously considered by OWCP, OWCP properly denied his reconsideration 

request.9

CONCLUSION

The Board finds that OWCP properly refused to reopen appellant’s case for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

8 Supra note 5; see R.M., 59 ECAB 690 (2008).

9 M.A., Docket No. 16-1846 (issued October 20, 2017).
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ORDER

IT IS HEREBY ORDERED THAT the August 11, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 20, 2018

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