United States Department of Labor

Employees’ Compensation Appeals Board

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B.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Decatur, GA, Employer

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Docket No. 17-1661

Issued: January 4, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 26, 2017 appellant filed a timely appeal from a February 1, 2017 nonmerit 

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

elapsed from the most recent merit decision, dated December 27, 2016, the date of 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 to review the merits of the 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).

FACTUAL HISTORY

On September 21, 2016 appellant, then a 53-year-old program support clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed tendinitis as a result of an 

 

1 5 U.S.C. § 8101 et seq.
2

increased workload of typing and writing. She first became aware of her condition and of its 

relationship to her federal employment on June 1, 2016. A supervisor noted that appellant had 

stopped work on September 16, 2016 at 1:00 p.m. and returned to work on the same date at 3:00 

p.m.

By development letter dated November 2, 2016, OWCP informed appellant of the 

evidence necessary to support her claim and requested that she submit additional factual and 

medical evidence. It requested that she respond to a questionnaire and afforded her 30 days to 

submit additional evidence. In a letter of the same date, OWCP requested additional evidence 

from the employing establishment with regard to appellant’s duties as a federal employee. 

On November 21, 2016 appellant responded to OWCP’s inquiries. She stated that she 

had visited her physician in June 2016 and that she was experiencing aching, burning, cramping, 

stiffness, numbness, pain, swelling, tingling, and weakness bilaterally in her hands, wrists, and 

fingers. Appellant described her duties as including typing, writing, placing records in boxes and 

envelopes, and answering telephones. She noted that on weekends she washed and cleaned her 

house. Appellant stated that her symptoms were constant and that nothing had been effective in 

curing them. She noted that she had no previous injuries to her hands, arms, or wrists, and had 

never been diagnosed with gout, arthritis, hypothyroidism, diabetes, or ganglion.

By letter dated November 21, 2016, Dr. Elsie Morris, Board-certified in occupational 

medicine, diagnosed a repetitive use work-related injury and tendinitis. She noted that on 

physical examination appellant’s wrists were negative for swelling, with “increased prominence”

of both ulna and radial styloid bones, along with tenderness to palpation over the carpal bones 

bilaterally. Appellant experienced pain with flexion, extension, and medial bending of the 

wrists. Dr. Morris noted that her workload had recently increased due to staff shortage and that 

she typed and wrote for eight hours per day processing medical records.

By letter dated November 25, 2015, the employing establishment responded to OWCP’s 

inquiries. A supervisor noted that appellant’s duties included organizing and managing patients’

health information, entering veterans’ information by typing and writing, answering the 

telephone, putting veterans’ records into boxes and envelopes, ensuring paperwork was properly 

filled out, verifying the accuracy and accessibility of files, ensuring all files are secure,

communicating with physicians and other health care professionals to clarify diagnoses or to 

obtain additional information, maintaining electronic health records databases, and analyzing 

electronic data.

By decision dated December 27, 2016, OWCP denied appellant’s claim. Although it 

accepted the implicated factors of her federal employment, it found that she had not submitted 

any medical evidence containing a firm diagnosis causally related to the accepted factors of her 

federal employment. On January 13, 2017 appellant requested reconsideration. With her request 

she submitted a narrative statement in which she stated, “I received a telephone call in 12/2016 

stating that the claims examiner did not know what part of my body was injured. Throughout all 

the documents provided both hands was listed and tendonitis was the diag.”

By decision dated February 1, 2017, OWCP denied appellant’s request for 

reconsideration. It found that her January 10, 2017 letter was not relevant to the reason her claim 
3

was denied, because it was not medical evidence. OWCP further found that Dr. Morris’ report 

dated November 21, 2016 was already considered in its previous decision.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.3

ANALYSIS

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). 

OWCP issued a merit decision dated December 27, 2016 in which it found that appellant 

had not submitted any medical evidence containing a firm diagnosis of a medical condition 

causally related to the accepted factors of her federal employment. Therefore this is the 

underlying issue in this case. 

In her January 13, 2017 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered. 

With her reconsideration request, appellant submitted a narrative statement in which she 

stated, “I received a telephone call in 12/2016 stating that the claims examiner did not know 

what part of my body was injured. Throughout all the documents provided both hands was listed 

and tendonitis was the diag.” The underlying issue in this case is whether appellant developed 

an occupational disease causally related to factors of her employment. That is a medical issue 

which must be addressed by new and relevant medical evidence.4 Appellant’s own factual 

interpretation of the medical evidence does not constitute relevant medical evidence,

5

as lay 

persons are not competent to render medical opinion.6

The Board therefore finds that, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, or advance a new and relevant legal argument not previously 

 

2 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

4 See Bobbie F. Cowart, 55 ECAB 746 (2004).

5 See L.I., Docket No. 17-0759 (issued July 6, 2017). 

6 See S.G., Docket No. 17-0968 (issued September 13, 2017); James A. Long, 40 ECAB 538 (1989).
4

considered. Thus, appellant is not entitled to a review of the merits of her claim based on the 

first and second above-noted requirements under section 10.606(b)(3). 

Appellant did not submit any additional medical evidence in support of her request for 

reconsideration. Therefore she did not submit relevant or pertinent new evidence not previously 

considered. As such, the Board finds that appellant did not meet the third above-noted 

requirement of 20 C.F.R. § 10.606(b)(3) in her reconsideration request.

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

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 February 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 4, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board