United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

DEPARTMENT OF STATE, AMERICAN 

EMBASSY, Maharajgunj, Kathmandu, Employer

__________________________________________ 

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Docket No. 15-1261 

Issued: January 27, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 15, 2015 appellant filed a timely appeal of a December 1, 2014 nonmerit 

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

elapsed between the last merit decision on November 21, 2013 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 determined that appellant’s application for 

reconsideration was insufficient to warrant merit review of the claim for compensation pursuant 

to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On July 23, 2012 appellant, then a 48-year-old foreign service officer, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained injuries in the performance of duty on 

May 31, 2012. In a June 26, 2012 statement, he claimed that he was pushed into a swimming 

pool during a “management event” and his left knee struck the concrete floor of the swimming 

pool. Appellant stated that he returned to the office and continued to work through the end of the 

day, but then the next day he had to take an overnight flight to the United States for a permanent 

change of duty station. He indicated that he had pain in his right leg, hip, and back, and he was 

diagnosed with an L5-S1 herniated disc. Appellant stated that he believed his left knee hitting 

the concrete as well as moving heavy bags during his travel had contributed to his herniated disc. 

In response to questions from OWCP, the employing establishment stated that the 

May 31, 2012 event was a farewell party for departing officers, which included appellant. It 

indicated that the party was held at a recreational center managed by the U.S. Embassy, with him 

and his staff encouraged, but not required, to attend. According to the employing establishment, 

the event was held during working hours, from 3:00 p.m. to 500 p.m. on a Friday, and was meant 

to be a team building exercise. 

In support of his claim appellant submitted medical evidence including a June 12, 2012 

report from Dr. David Ebelke, a Board-certified orthopedic surgeon. Dr. Ebelke provided a 

history that appellant’s move back into the U.S. had involved a lot of baggage lifting, travel on 

airplanes, and moving through airports. He indicated that appellant was seen for low back, right 

hip, and radiating right leg pain. 

By decision dated September 5, 2012, OWCP denied the claim for compensation. It 

found that there were inconsistencies as to how the injury occurred. OWCP found that while 

appellant had reported being pushed into a pool, Dr. Ebelke had referred to lifting luggage and 

other travel activities. 

Appellant requested a review of the written record by an OWCP hearing representative in 

a letter dated October 2, 2012. He stated that he had explained how he had been pushed into the 

pool and struck his left knee. Appellant submitted a June 18, 2012 treatment note from 

Dr. Ebelke, noting that appellant had been thrown in a pool and struck his left knee. Dr. Ebelke 

noted that it was possible that the fall in the pool had precipitated the disc herniation, as it was 

not unusual for radicular symptoms to appear a day or two after a herniation occurs. 

By decision dated January 22, 2013, the hearing representative found the May 31, 2012 

incident did not occur in the performance of duty. The hearing representative cited Board 

precedent with respect to recreational or social activities, and found that appellant was in travel 

status, attending a voluntary event, with no benefit to the employing establishment. 

On September 10, 2013 appellant submitted an August 28, 2013 letter requesting 

reconsideration. He argued that he was not in travel status on May 31, 2012. In addition, 

appellant argued that it was not a voluntary event, as it was an official farewell event to honor 

departing officers. He noted that it was during office hours and on employing establishment 
3

premises, and argued that the employing establishment does derive a benefit from such farewell 

events. 

By decision dated November 21, 2013, OWCP reviewed the merits of the claim and 

denied modification. It found that the May 31, 2012 incident was a recreational activity not in 

the performance of duty. 

On November 20, 2014 appellant, through his counsel at the time, requested 

reconsideration and submitted a November 17, 2014 letter.2

 He reviewed the factual history and 

prior OWCP decisions. Appellant argued that recreational or social activities are within the 

course of employment when they occur on the premises during a lunch or recreational period as a 

regular incident of the employment, when the employing establishment expressly or impliedly 

requires participation, or when the employing establishment derives substantial direct benefits 

from the activity beyond the intangible value that is common to all kinds of recreation and social 

life. According to appellant, OWCP had denied the claim because there was no substantial 

benefit to the employing establishment in this case. Appellant asserted that OWCP had not 

properly considered its Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of 

Duty, Chapter 2.804.8 (August 1992) regarding recreational activity claims. He argued that the 

manual provided two different scenarios: Section (a) deals with an employee who is engaged in 

formal recreation and either the “employee is paid for participating or the recreational activity is 

required and prescribed as a part of the employee’s training or assigned duties.” Section (b) 

addresses employees “engaged in a recreational activity under other circumstances.” The 

substantial and direct benefit to the employing establishment is only considerer under section (b) 

whereas the present case fell under section (a). 

Appellant further argued that even if the substantial benefit analysis was applied, the case 

cited by OWCP was distinguishable from the present case. He stated that in Barbara Roy,3 the 

Board addressed voluntary participation after work hours, while the present case was during 

work hours and was not voluntary. Appellant also discussed the Foreign Affairs Manual 

covering appellant and other employees, and a Community Liaison Office (CLO), whose 

responsibility was to implement recreational and social activities for post employees. It was 

argued that the establishment of the CLO indicated the importance and benefit to the employing 

establishment of recreational activities. Appellant submitted an employing establishment “report 

of mishap” with respect to the May 31, 2012 incident and argued that the evidence of record 

demonstrated that the injury occurred in the performance of duty. 

By decision dated December 1, 2014, OWCP denied merit review of the claim. It found 

that appellant had not met any of the standards to require a merit review of the claim for 

compensation. 

 2

 Appellant had not previously been represented by counsel, and is not represented on appeal. 

3

 42 ECAB 960 (1991). 
4

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(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 evidence not previously considered by OWCP.”5 20 C.F.R. 

§ 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.6

ANALYSIS 

The claim in this case was denied based on a finding by OWCP that appellant was not in 

the performance of duty on May 31, 2012 when he was pushed into a pool, during work hours, at 

an Embassy event for departing Foreign Service officers. OWCP found that he was involved in 

a voluntary recreational activity that was not covered under FECA. 

As noted above, a claimant is entitled to a decision on the merits of the claim if he 

advances a relevant legal argument not previously considered by OWCP. The Board finds that 

appellant submitted a reconsideration request that advanced new and relevant legal arguments. 

On reconsideration appellant argued, for the first time, that under OWCP procedures regarding 

recreation he would be covered for any injury resulting from the May 31, 2012 incident. 

Appellant discussed Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, 

Chapter 2.804.8 (August 1992). Section (a) states that a claimant is in the performance of duty if 

injured while engaged in a recreational activity organized and directed by the employing 

establishment and the claimant was paid to participate, or the activity was required as part of 

assigned duties or training. Section (b) discusses recreational activity under other circumstances. 

In its December 1, 2014 decision, OWCP acknowledged that appellant raised the 

argument, but did not consider the argument under the standard of “advances a relevant legal 

argument not previously considered by OWCP” to determine whether he was entitled to a merit 

review. Appellant has clearly raised a new and relevant legal argument with respect to the 

provisions of OWCP procedure manual regarding recreational activity. He argued that the 

procedure manual provides a framework with respect to recreational or social activity, and 

OWCP did not follow its procedure manual. Appellant also raised a new argument that even if a 

substantial benefit to the employing establishment analysis was applied, OWCP had not properly 

applied Board case law. 

 4

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
5

For the above reasons, the Board finds that appellant has advanced relevant legal 

arguments not previously considered by OWCP with respect to the primary legal issue raised in 

this case. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant was entitled to a review of the merits 

of his claim for compensation. The case will be remanded for a proper merit decision. 

CONCLUSION 

The Board finds that appellant’s application for reconsideration was sufficient to warrant 

a merit review of the claim for compensation. 

ORDER 

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

Compensation Programs dated December 1, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: January 27, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board