United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Oakland, CA, Employer

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Docket No. 18-1145

Issued: January 4, 2019

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 May 15, 2018 appellant filed a timely appeal from an April 25, 2018 nonmerit decision 

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

the last merit decision, dated June 7, 2017, 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 this case.

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On December 29, 2016 appellant, then a 50-year-old transportation security 

officer/screener, filed a traumatic injury claim (Form CA-1) alleging that on December 28, 2016, 

he pulled a bag off a conveyor belt at work and twisted his left hand. He stopped work on the date 

of injury and did not return.

In a report dated February 22, 2017, Dr. Sachin Kapoor, an attending osteopathic physician 

Board-certified in internal and occupational medicine, diagnosed a nondisplaced spiral-type 

fracture of the fourth metacarpal. He prescribed physical therapy. In a report dated February 28, 

2017, Dr. Kapoor noted that the fracture was healing well.

Appellant filed claims for compensation (CA-7 forms) for intermittent work absences from 

January 8 to March 4, 2017, and March 15 to April 15, 2017.

In a letter dated March 11, 2017, the employing establishment controverted the claim, 

contending that appellant had filed the claim as he had been provided with a notice of proposed 

removal on November 28, 2016 due to excessive absences. Appellant had been removed from the 

employing establishment effective January 6, 2017.

On March 31, 2017 OWCP accepted that the December 28, 2016 employment incident 

caused a left wrist sprain and a 4

th metacarpal shaft fracture of the left hand. 

In a report dated March 22, 2017, Dr. Kapoor found that the accepted fracture had resolved

and returned appellant to full-duty work. 

By decision dated June 7, 2017, OWCP denied appellant’s claim for wage-loss 

compensation from January 8 to April 15, 2017 as the medical evidence of record was insufficient 

to establish that the accepted left 4th metacarpal fracture totally disabled him from work for that 

period.

On April 17, 2018 appellant requested reconsideration. In support thereof, he submitted 

an April 13, 2018 statement asserting that he was entitled to wage-loss compensation for his 

attendance at medical appointments and physical therapy treatment sessions through April 2017.

By decision dated April 25, 2018, OWCP denied reconsideration under 5 U.S.C. § 8128(a), 

finding that appellant did not submit new and relevant evidence or legal argument sufficient to 

warrant reopening the merits of his claim. It found that appellant’s April 13, 2018 statement was 

not relevant to the medical issue of whether he was disabled from work for any portion of the 

claimed period.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

 

2 5 U.S.C. § 8128(a). 
3

(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.3 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision.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

In support of a request for reconsideration, claimant is not required to submit all evidence 

which may be necessary to discharge his or her burden of proof.6 He or she needs only to submit 

relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an OWCP 

decision denying a merit review, the function of the Board is to determine whether OWCP properly 

applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.8

ANALYSIS

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

merits of his claim.

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

a specific point of law. Moreover, appellant did not advance a relevant legal argument. On 

reconsideration, he provided his April 13, 2017 statement, contending that he was entitled to wageloss compensation for attendance at medical appointments and physical therapy sessions.9

 

However, appellant was removed from employment effective January 6, 2017, which was prior to 

the dates claimed on his Form CA-7 for intermittent disability. Therefore, he would not have 

incurred any wage loss for attending medical appointments and physical therapy sessions during 

the period claimed.10 As appellant’s legal argument has no reasonable color of validity, he did not 

allege that OWCP erroneously applied or interpreted a specific point of law or advance a relevant 

 

3 20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6 Helen E. Tschantz, 39 ECAB 1382 (1988).

7 See Mark H. Dever, 53 ECAB 710 (2002).

8 Annette Louise, 54 ECAB 783 (2003). 

9 See D.E., Docket No. 16-1604 (issued Feb. 1, 2017) (appellant would be entitled to compensation for any time 

missed from work due to medical examination or treatment for an employment-related condition).

10 The Board notes that while appellant has asserted that OWCP has denied his claim for mileage reimbursement, 

that issue is not presently before the Board as there is no adverse decision of record denying such a claim.
4

legal argument, and he is not entitled to a review of the merits of his claim based on the first and 

second requirements under 20 C.F.R. § 10.606(b)(3).11

A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence or argument, but the Board finds that appellant did not submit any such evidence or 

argument in this case.12

As appellant’s application for review did not meet any of the three requirements 

enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied the 

request for reconsideration without reopening the case for a review on the merits.13

CONCLUSION

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

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

 

11 See C.F., Docket No. 17-1611 (issued December 13, 2017). 

12 Supra note 3. 

13 R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007) (when an application for 

reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits).
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ORDER

IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: January 4, 2019

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