United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, Detroit, MI, 

Employer

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Docket No. 18-0889

Issued: November 21, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 20, 2018 appellant filed a timely appeal from a December 4, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated December 2, 2016, 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 August 8, 2015 appellant, then a 39-year-old officer, filed a traumatic injury claim

(Form CA-1) alleging that on July 23, 2015 he was participating in drills, acting as a suspect with 

his hands placed on the wall, when he was placed in an arm bar and forced to the ground in a 

twisting motion. He alleged that he sustained dislocation of lumbar vertebra, lumbar intervertebral 

disc without myelopathy, and other injuries of his lower back and spine. Appellant did not stop 

work. 

In a development letter dated August 19, 2015, OWCP requested additional factual and 

medical evidence in support of appellant’s traumatic injury claim. It afforded him 30 days to 

respond.

Appellant provided a note dated August 20, 2015 from Dr. David T. Mitchell, a 

chiropractor, noting acute back pain on July 25, 2015. Dr. Mitchell diagnosed subluxation 

complex of L5 on S1 and lumbar intervertebral disc without myopathy. He completed a form 

report on September 11, 2015 and noted that appellant was thrown to the ground with rotation 

during defensive tactics training. Dr. Mitchell diagnosed anterior longitudinal damage to L4-S1 

and posterior longitudinal ligament L5-S1. He indicated by checking the box marked “yes” that 

appellant’s condition was caused or aggravated by his employment activity. Dr. Mitchell indicated 

that he provided chiropractic adjustment and recommended a magnetic resonance imaging scan of 

appellant’s lumbar spine to rule out disc pathology.

By decision dated September 29, 2015, OWCP denied appellant’s traumatic injury claim 

finding that he failed to provide medical evidence to establish fact of injury. It explained the 

requirements for a chiropractor’s report to constitute medical evidence and noted that Dr. Mitchell 

had not indicated that his diagnosis of spinal subluxation was based on x-ray examination 

findings.

2

Appellant requested reconsideration on June 2, 2016 and submitted additional medical 

evidence. In a report dated October 14, 2015, Dr. Mitchell provided a history of injury, noting that 

on July 23, 2015 appellant participated in defensive tactics training and felt acute pain in the low 

back on the left side which radiated into his left knee. He indicated that he followed up with 

radiology and diagnosed subluxations at L5 and S1.

By decision dated December 2, 2016, OWCP reviewed the merits of appellant’s claim and 

denied modification of the September 29, 2015 decision. It informed him that a chiropractor was 

considered a physician for the purposes of FECA only to the extent that he diagnosed a subluxation 

 

2 Chiropractors are considered physicians only to the extent that their reimbursable services are limited to treatment 

consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. 

§ 8101(2); consequently, their medical findings and/or opinions which are not based on x-rays will not suffice for 

purposes of establishing entitlement to FECA benefits. A.L., Docket No. 18-0420 (issued August 21, 2018); David P. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006).
3

of the spine as demonstrated by x-ray to exist. OWCP noted that Dr. Mitchell had diagnosed 

subluxations of the spine, but had not provided an x-ray report supporting his diagnosis.3

By appeal request form, received by OWCP on November 20, 2017, appellant requested 

reconsideration.

By decision dated December 4, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of his claim as he did not provide relevant and pertinent new evidence or new 

argument in support of his request for reconsideration.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4 

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.5 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant also must file his or her application 

for review within one year of the date of that decision.6 When a claimant fails to meet one of the 

above standards, OWCP will deny the application for review without reopening the case for a 

review on the merits.7

ANALYSIS

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).

Appellant did not provide any evidence or argument in support of his November 20, 2017 

request for reconsideration. He did not show that OWCP erroneously applied or interpreted a 

specific point of law, nor did he advance a relevant legal argument not previously considered. 

Thus, appellant is not entitled to a review of the merits of the claim based on the first and second 

above-noted requirements under section 10.606(b)(3).8

 

3 OWCP’s regulations provide that a chiropractor may interpret his or her x-rays to the same extent as any other 

physician. However, to be give any weight, the medical report must note that x-rays support the finding of spinal 

subluxation. OWCP will not necessarily require submission of the x-ray, or a report of the x-ray, but the report must 

be available on request. 20 C.F.R. § 10.311(c); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3.a(3) (January 2013).

4 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

5 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8 Supra note 5; M.A., Docket No. 18-0395 (issued July 17, 2018).
4

The Board also finds that appellant did not submit relevant and pertinent new evidence in 

support of his reconsideration request. The underlying issue in this case is whether appellant has 

established a diagnosed medical condition arising from his accepted July 23, 2015 employment 

incident. Because he did not provide OWCP with any relevant and pertinent new evidence, 

appellant is also not entitled to a review of the merits based on the third requirement under section 

10.606(b)(3).9

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).

ORDER

IT IS HEREBY ORDERED THAT the December 4, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 21, 2018

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 20 C.F.R. § 10.606(b)(3)(iii).