United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HEALTH CARE SYSTEM, Sioux Falls, SD, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0142 

Issued: February 25, 2016 

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 November 2, 2015 appellant filed a timely appeal of an August 24, 2015 nonmerit 

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

has elapsed from the last merit decision dated April 21, 2015, and 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 the claim. 

ISSUE 

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

the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant argues that she was entitled to reimbursement for her initial medical 

treatment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 17, 2015 appellant, then a 26-year-old practical nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on February 13, 2015 she sustained an eye injury when a 

patient’s urine splashed into her left eye while she was assisting with catheter care. 

Appellant was examined on February 13, 2015 in the employing establishment 

emergency room and was prescribed medication and ointment to treat her eye. Dr. Carlie J. 

Carlson, an osteopath at the employing establishment clinic, examined appellant on February 19, 

2015 and reported that she continued to use her prescribed eye drops. She concluded that 

appellant’s left eye was fine with no problems. 

In a letter dated March 9, 2015, OWCP requested additional medical evidence in support 

of appellant’s claim. It stated that the medical evidence did not provide a diagnosed condition 

resulting from the employment incident. OWCP noted that exposure to a workplace hazard such 

as an infectious agent did not constitute a work-related condition entitling an employee to 

medical treatment under FECA. 

Dr. Carlson completed a note dated February 19, 2015. She indicated that a patient’s 

urine splashed into appellant’s left eye and that the patient had a history of a urinary tract 

infection. Dr. Carlson reported that appellant’s left eye was fine with no drainage, discharge, or 

redness. She noted that appellant had used Vigamox ophthalmological drops for her eye and 

could work with no restrictions. On March 27, 2015 Dr. Carlson diagnosed body fluid exposure 

in the left eye and reported appellant’s history of injury. She indicated that appellant utilized 

prescribed antibiotics and that her left eye had no physical problems and normal visual acuity on 

February 19, 2015. 

By decision dated April 21, 2015, OWCP denied appellant’s claim, finding that the 

evidence submitted did not contain a diagnosed condition resulting from her employment 

incident. It explained that section 10.303(a) of its regulations held that simple exposure to a 

workplace hazard such as an infectious agent, does not constitute a work-related injury entitling 

an employee to medical treatment under FECA.2

 

Appellant requested reconsideration on June 25, 2015. In support of her request, she 

submitted a letter from the employing establishment explaining that her incident occurred after 

hours and required her to seek treatment from the employing establishment emergency room 

rather than the occupational health clinic. The emergency room did not have antibiotics 

available for appellant and instructed her to fill her prescription from an outside source. 

Appellant was further told that this expense would be covered by OWCP. The employing 

 2

 20 C.F.R. § 10.303. This regulation further provides that an employing establishment should not use a Form 

CA-16 to authorize medical testing unless the employee has sustained an identifiable injury or medical condition as 

a result of that exposure. The regulation also notes that employers may be required to provide medical testing or 

services under other statutes or regulations, such as the Occupational Safety & Health Administration regulations. 

Section 10.313 of the regulations provide that in unusual or emergency circumstances OWCP may approve payment 

for medical expenses incurred otherwise than as authorized in section 20 C.F.R. § 10.303. It may approve payment 

for medical expenses incurred even if a CA-16 form authorizing medical treatment and expenses has not been issued 

and the claim is subsequently denied; payment in such situations must be determined on a case-by-case basis. See

C.L., Docket No. 14-5 (issued May 5, 2014). 
3

establishment concluded, “The claimant was left with the out-of-pocket medical expense for the 

antibiotic and this should not have been the case.” 

Appellant also submitted an addendum report dated June 16, 2015 from Dr. Carlson. She 

concluded, “The work incident of the accidental splash/spray of urine, hit her face/left eye, and 

caused the bodily-fluid exposure.” Dr. Carlson indicated that appellant’s diagnosis was personal 

history of contact with and suspected exposure to potential hazardous body fluids. 

By decision dated August 24, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits as Dr. Carlson’s June 16, 2015 report was repetitious and consisted of 

copies of documentation that was previously considered. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.3

 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting, in writing, an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.4

 

Section 10.608 of OWCP’s regulation provides that when a request for reconsideration is timely, 

but does meet at least one of these three requirements, OWCP will deny the application for 

review without reopening the case for a review on the merits.5 Section 10.607(a) of OWCP’s 

regulation provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.6

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a) did not constitute an 

abuse of discretion. 

The issue 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 consideration of the merits of the claim. 

Appellant filed a timely request for reconsideration on June 25, 2015 from the April 21, 2015 

merit decision. With her request, she did not set forth arguments showing that OWCP 

erroneously applied or interpreted a specific point of law nor did she advance a relevant legal 

argument not previously considered by OWCP. 

 3

 5 U.S.C. §§ 8101-8193, 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

 5 Id. at § 10.608. 

6 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(October 2011). 
4

In support of her request for reconsideration, appellant attempted to submit additional 

relevant and pertinent new evidence not previously considered by OWCP. She submitted an 

addendum to Dr. Carlson’s reports dated June 16, 2015. Dr. Carlson indicated that appellant’s 

diagnosis was personal history of contact with and suspected exposure to potential hazardous 

body fluids. The Board has held that material which is duplicative of that already contained in 

the case record does not constitute a basis for reopening a case.7

 Dr. Carlson previously 

diagnosed body fluid exposure in the left eye in her March 27, 2015 report considered by OWCP 

in the April 21, 2015 merit decision. As the addendum report was duplicative of evidence 

already in the record, this report was not sufficient to require OWCP to reopen appellant’s claim 

for further merit review. 

Accordingly, as appellant’s request for reconsideration did not meet the requirements for 

reopening her case, the Board finds that OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 

5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 25, 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 

 7 P.O., Docket No. 14-1675 (issued December 3, 2015). See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).