United States Department of Labor

Employees’ Compensation Appeals Board

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E.D., Appellant

and

ADMINISTRATIVE OFFICE OF THE U.S. 

COURTS, U.S. DISTRICT COURT, 

Santa Fe, NM, Employer

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Docket No. 17-1442

Issued: October 17, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant filed a timely appeal from a December 21, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated September 30, 2015, 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 the claim.2

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).

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP after the December 21, 2016 decision 

was issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its 

final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On May 24, 2005 appellant, then a 42-year-old courtroom deputy, filed a traumatic injury 

claim (Form CA-1) alleging an injury on May 23, 2005 due to a slip and fall at work. She 

stopped work the day of her injury and received continuation of pay. OWCP initially accepted 

appellant’s claim for right foot/ankle sprain and right metatarsal fracture. Appellant underwent

right ankle surgery in August 2005. OWCP paid appellant for intermittent wage-loss 

compensation for the period July 21, 2005 through January 5, 2006. It subsequently expanded 

appellant’s claim to include right foot reflex sympathetic dystrophy. 

In a November 20, 2005 attending physician’s report (Form CA-20), Dr. Nathan D. Ivey, 

a podiatrist, advised that appellant was capable of light-duty work effective September 2005 with 

the following restrictions: weight-bearing as tolerated. 

Appellant resigned from federal service effective January 25, 2006. 

From 2006 through 2012 appellant continued to receive treatment for her right lower 

extremity pain disorder. 

On April 18, 2013 OWCP awarded appellant a schedule award for 10 percent permanent 

impairment of the right lower extremity. The award covered a 28.8-week period from 

November 30, 2012 through June 19, 2013. 

In August 2013, OWCP expanded appellant’s claim to include complex regional pain 

syndrome (CRPS) or right foot causalgia.

On August 8, 2013 appellant filed a claim for wage-loss compensation (CA-7 and CA-7a

forms) for the period November 6, 2006 through November 29, 2012 and June 20, 2013 and 

continuing. In support of her claim, she submitted an employment history indicating that she had 

worked as a legal assistant for a law firm from April 2006 to 2009 and then as a self-employed 

contractor from 2010 to the present. Appellant also submitted a worksheet indicating her hours 

of disability for the period July 21, 2005 through January 5, 2006.3

In a September 26, 2013 letter, OWCP advised appellant of the need to submit medical 

evidence in support her claimed period(s) of disability. It afforded her 30 days to submit 

additional evidence.

In a second letter dated September 26, 2013, OWCP requested additional information 

from the employing establishment regarding appellant’s work or any job offers made to appellant 

during the period claimed.

Appellant submitted progress notes from Dr. Craig S. Nairn, a Board-certified 

anesthesiologist and pain medicine specialist, covering the period May 21, 2013 through 

April 11, 2014. Dr. Nairn’s diagnoses included lower extremity CRPS, with associated chronic 

pain syndrome and classical migraine.

 

3 OWCP previously paid appellant for the claimed period in June 2006.
3

Subsequently, the employing establishment submitted a Notification of Personnel Action 

(SF-50) indicating that appellant had resigned from federal employment effective 

January 25, 2006. 

In a May 5, 2014 letter, the employing establishment noted that there was no additional 

job offered to appellant after she resigned on January 25, 2006. 

On June 30, 2014 appellant indicated that she was forced to resign her position as 

courtroom deputy and basically had no choice but to resign and/or get fired from her position at 

the time of her meeting with the Clerk of the Court and the Chief Deputy Clerk. She further 

indicated that it was unclear to her at the time whether she would require any special 

accommodations and/or physical requirements for work because she was still going through 

physical therapy for her foot, so neither she nor the employing establishment knew that she 

would require work accommodations. 

Appellant continued to submit monthly progress notes from Dr. Nairn. In a June 18, 

2015 report, Dr. Nairn indicated that appellant was under his care for CRPS of the lower 

extremity and she had tried numerous modalities of treatment. He advised that appellant’s pain 

limited her ability to function and would be expected to interfere with her ability to work.

By decision dated September 30, 2015, OWCP denied appellant’s claim for disability for 

the period November 6, 2006 to November 29, 2012 and from June 20, 2013 continuing because 

the medical evidence of record failed to establish total disability due to the accepted employment 

injuries. It found that there was no evidence of record to support that the employing 

establishment was not accommodating appellant’s weight-bearing restrictions when she resigned 

on January 25, 2006. 

On March 14, 2016 appellant requested an expansion of her accepted conditions to 

include depressive disorder, anxiety disorder, and agoraphobia and submitted medical evidence 

regarding her psychiatric conditions in support of her claim. 

On September 30, 2016 appellant requested reconsideration of the September 30, 2015 

decision and submitted reports dated September 8 and October 7, 2016 from Dr. Nairn who 

continued to diagnose CRPS of the right lower limb and chronic pain syndrome.

OWCP referred appellant for a second opinion psychiatric evaluation. In an October 26, 

2016 report, Dr. Lori A. Willinghurst, a Board-certified psychiatrist, diagnosed major depressive 

disorder, single, moderate and opined that appellant’s condition was causally related to her 

accepted work injury. 

In an October 26, 2016 report, Dr. Nairn reiterated his diagnoses and indicated that 

appellant continued to complain of pain in her right foot with radiation up the leg above the knee. 

In a decision dated December 21, 2016, OWCP expanded appellant’s claim to include 

major depressive disorder, single moderate. 

By decision dated December 21, 2016, OWCP denied appellant’s request for 

reconsideration without a merit review because she failed to advance a relevant legal argument 
4

or submit any relevant and pertinent new evidence. It found that the medical evidence appellant

submitted was irrelevant because it failed to establish that the employing establishment was not 

accommodating her work restrictions when she resigned on January 25, 2006. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.6 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.7 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.8

ANALYSIS

The Board finds that appellant’s request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, the Board finds that she did not advance a relevant legal argument not previously 

considered by OWCP. Consequently, appellant is 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).

In support of her reconsideration request, appellant submitted reports from Dr. Nairn who 

continued to diagnose CRPS of the right lower limb. The Board finds that submission of this 

evidence did not require reopening appellant’s case for merit review because it failed to address 

the point at issue before OWCP. As OWCP denied the claim based on the lack of supportive 

evidence establishing that the employing establishment was not accommodating appellant’s 

weight-bearing work restrictions when she resigned on January 25, 2006, the Board finds that 

these additional medical reports do not constitute pertinent new and relevant evidence. The 

reports further failed to address appellant’s disability for the periods claimed due to her accepted 

 

4 This section provides in pertinent part: “[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 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Id. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).
5

right lower extremity conditions.9 Therefore, they are insufficient to require OWCP to reopen 

appellant’s claim for consideration of the merits. Appellant also submitted medical evidence 

regarding her psychiatric condition, which was subsequently accepted by OWCP as a workrelated injury. 

The Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits of her claim pursuant to any of the three requirements under section 

10.606(b)(3) and properly denied her request for reconsideration.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

ORDER

IT IS HEREBY ORDERED THAT the December 21, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 17, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9 The submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case. See C.H., Docket No. 16-0171 (issued September 5, 2017); Edward Matthew 

Diekemper, 31 ECAB 224, 225 (1979).