United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.T., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

CONTRACT MANAGEMENT AGENCY, 

Madison, AL, Employer

__________________________________________

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Docket No. 16-1256

Issued: March 6, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 31, 2016 appellant filed a timely appeal from a May 24, 2016 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days elapsed 

from the last merit decision, dated August 7, 2015, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of the claim.

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 Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion, by order dated November 16, 2016, the Board denied the request as appellant’s arguments on appeal 

could be adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral 

Argument, Docket No. 16-1256 (issued November 16, 2016).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On October 18, 2013 appellant, then a 50-year-old management analyst, filed a traumatic 

injury claim (Form CA-1) alleging that a September 27, 2013 preemployment vaccination caused 

right upper extremity (arm) muscle and nerve damage.4 OWCP initially denied the claim 

because the medical evidence then of record did not include a diagnosis in connection with the 

accepted employment incident. It subsequently denied reconsideration on January 7, 2014. By 

decision dated December 12, 2014, OWCP denied modification of its initial December 2, 2013 

merit decision. It again denied reconsideration on January 15, 2015. Appellant appealed to the 

Board. The Board affirmed the December 12, 2014 merit decision as well as the January 15, 

2015 nonmerit decision.5

On April 13, 2016 appellant again requested reconsideration. He noted that the 

vaccination(s) permanently damaged his right arm and that OWCP repeatedly denied his claim 

despite having submitted substantial medical evidence. Appellant included a copy of a one-page 

judgement issued in his favor against the Department of Health and Human Services. The 

December 1, 2015 judgment issued by the U.S. Court of Federal Claims (No. 14-774 V) was 

pursuant to “Vaccine Rule 11(a).”

By decision dated May 24, 2016, OWCP denied appellant’s request for reconsideration. 

LEGAL PRECEDENT

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

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 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.8 A timely application for reconsideration, including all supporting documents, must set 

 

3 Docket No. 15-0827 (issued August 7, 2015).

4 Appellant had recently accepted a new job, and the preemployment vaccination was administered at an Army 

occupational health center.

5 See supra note 3.

6 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).

7 20 C.F.R. § 10.607.

8

Id. at § 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.
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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.9 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.10

ANALYSIS

On April 13, 2016 appellant filed a timely request for reconsideration.11 He contended 

that his traumatic injury claim was improperly denied as the medical evidence of record did not 

include a firm diagnosis in connection with the September 27, 2013 employment incident. 

Appellant’s April 13, 2016 request for reconsideration neither alleged, nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not 

advance any relevant legal arguments not previously considered by OWCP. The Board finds 

that appellant is not entitled to a review of the merits based on the first and second requirements 

under section 10.606(b)(3).12

The Board further finds that appellant also failed to submit any relevant and pertinent 

new evidence with his April 13, 2016 request for reconsideration. The issue on reconsideration 

is whether the medical evidence of record establishes a diagnosis in connection with the accepted 

employment incident. However, appellant did not submit any medical evidence with his latest 

request for reconsideration. Although the December 1, 2015 U.S. Court of Federal Claims 

judgment found in favor of appellant it does not contain factual evidence relative to a medical 

diagnosis. Because appellant did not provide any relevant and pertinent new evidence in support 

of his reconsideration request he is not entitled to a review of the merits based on the third 

requirement under section 10.606(b)(3).13 Accordingly, OWCP properly declined to reopen 

appellant’s case under 5 U.S.C. § 8128(a). The Board affirms OWCP’s May 24, 2016 nonmerit 

decision.

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).

 

9 20 C.F.R. § 10.606(b)(3).

10 Id. at § 10.608(a), (b).

11 Although OWCP’s last merit decision was dated December 12, 2014, the 1-year period for filing a timely 

request for reconsideration accompanies any subsequent merit decision, including any merit decision issued by the 

Board. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

12 20 C.F.R. § 10.606(b)(3)(i) and (ii).

13 Id. at § 10.606(b)(3)(iii).
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ORDER

IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board