United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF THE ARMY, PINE BLUFF 

ARSENAL, Pine Bluff, AR, Employer 

__________________________________________ 

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Docket No. 16-0782 

Issued: July 8, 2016 

Appearances: Case Submitted on the Record

C.B. Weiser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 9, 2016 appellant, through counsel, filed a timely appeal from a September 14, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As OWCP 

issued its last merit decision on September 24, 2014, more than 180 days before the filing of this 

appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request to reopen her case for 

further review of the merits under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 25, 2013 appellant, then a 39-year-old industrial worker, filed a traumatic injury 

claim (Form CA-1) alleging that on April 10, 2013 she sustained headaches, a stomachache, 

insomnia, and nervousness after “multiple M98 flash bang canisters detonated.” 

By decision dated June 7, 2013, OWCP denied appellant’s claim as she did not establish 

an injury in the performance of duty. It found that she had not established that the April 10, 

2013 incident occurred. 

On July 2, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. In a decision dated February 5, 2014, the hearing representative set aside the 

June 7, 2013 decision. She found that appellant had established that she was performing her job 

duties when a canister ignited causing explosions. The hearing representative instructed OWCP 

to refer appellant for a second opinion examination. 

Following further development, by decision dated September 24, 2014, OWCP denied 

appellant’s claim after finding that the medical evidence failed to establish a diagnosed condition 

causally related to the accepted April 10, 2013 employment incident. 

Appellant, on October 7, 2014, requested reconsideration and submitted additional 

factual and medical evidence. 

By decision dated September 14, 2015, OWCP denied appellant’s request for 

reconsideration as she had not raised an argument or submitted evidence sufficient to warrant 

reopening her case for further merit review under section 8128(a). 

On appeal appellant’s counsel argues that the medical evidence establishes that she 

sustained an emotional condition as a result of the compensable work factor. 

LEGAL PRECEDENT 

FECA provides 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.2

 Section 

10.607(a) of OWCP’s regulations requires that an application for reconsideration must be 

received within one year of the date of OWCP’s merit decision from which review is sought.3

 If 

a request for reconsideration is timely, OWCP will reopen a case for merit review under section 

8128(a) of FECA if the claimant: (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 

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(October 2011). 
3

OWCP.4 When a claimant fails to meet one of the above standards, OWCP will deny the 

application for reconsideration without reopening the case for review on the merits.5

OWCP’s procedures provide: 

“When a reconsideration decision is delayed beyond 90 days and the delay 

jeopardizes the claimant’s right to review of the merits of the case by the Board, 

OWCP should conduct a merit review. That is, the basis of the original decision 

and any new evidence should be considered and, if there is no basis to change the 

original decision, an order denying modification (rather than denying the 

application for review) should be prepared. There is no obligation to conduct a 

merit review on insufficient evidence if the maximum 180-day time limit for 

requesting review by the Board will have expired within the 90-day period 

following OWCP’s s receipt of the claimant’s reconsideration request.”6

ANALYSIS 

Appellant filed a traumatic injury claim alleging that she sustained headaches, a 

stomachache, insomnia, and nervousness on April 10, 2013 after M98 flash bang canisters 

detonated. OWCP denied her claim on June 7, 2013. Appellant requested an oral hearing. By 

decision dated February 5, 2014, an OWCP hearing representative accepted the employment 

incident and remanded the case for further development of the medical evidence. In a decision 

dated September 24, 2014, OWCP found that the medical evidence failed to establish that 

appellant had sustained a stress-related condition as a result of the compensable work factor. 

On October 7, 2014 OWCP received appellant’s timely request for reconsideration of its 

September 24, 2014 decision. It issued a decision denying merit review of her request for 

reconsideration on September 14, 2015, more than 11 months after receiving the request. The 

Board finds that OWCP’s delay of more than 11 months in issuing a decision on appellant’s 

reconsideration request effectively precluded her from appealing the most recent merit decision 

to the Board.7 Had OWCP acted upon her request within 90 days, she would have been able to 

seek review of its September 24, 2014 merit decision by the Board. The Board will thus remand 

the case for OWCP to issue an appropriate decision on the merits of the case in order to preserve 

appellant’s appeal rights. 

 4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011); 

M.D., Docket No. 13-1344 (issued November 7, 2013). 

7 See 20 C.F.R. §§ 501.2(c) and 501.3; D.S., Docket No. 13-1802 (issued March 20, 2014). 
4

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request to reopen her case for 

further review of the merits under section 8128(a) as it did not issue a timely decision on her 

request for reconsideration. 

ORDER 

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

Compensation Programs dated September 14, 2015 is set aside and the case is remanded for 

further proceedings consistent with this decision of the Board. 

Issued: July 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board