United States Department of Labor

Employees’ Compensation Appeals Board

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B.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES H. QUILLEN VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Mountain Home, TN, Employer

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Docket No. 19-0756

Issued: August 15, 2019

Appearances: Case Submitted on the Record

George T. East, Esq., for the appellant1

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 February 22, 2019 appellant, through counsel, filed a timely appeal from a January 22, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated February 14, 2018, to the filing 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

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 this case.3

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 December 29, 2017 appellant, then a 64-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on December 12, 2017 she twisted her left knee while in 

the performance of duty. She explained that she ran into a patient’s room to prevent him from 

falling and slipped on a liquid substance on the floor. Appellant’s right leg went outward, her left 

leg buckled beneath her, and she twisted her left knee. On the reverse side of the claim form the 

employing establishment controverted the claim as there was no medical evidence to support a 

work-related injury.

A December 12, 2017 left knee x-ray revealed no acute findings.

In an encounter note dated December 22, 2017, Dr. Eric D. Parks, a Board-certified family 

practitioner and sports medicine specialist, noted that appellant complained of severe left knee 

pain of 11 days’ duration. The notes indicated a work-related injury on “[December 11, 2017]”

when appellant slipped on a wet substance and fell in a patient’s room. On physical examination

Dr. Parks reported appellant’s left knee had a normal alignment and normal range of motion, but 

noted mild joint effusion and a mild limp. He diagnosed a left knee sprain and ordered a magnetic 

resonance imaging (MRI) scan. Dr. Parks indicated that, based on the mechanism of injury and 

his examination findings, he was concerned that appellant sustained an acute medial meniscus tear. 

He recommended sedentary work until appellant was cleared by an orthopedist.

In a January 12, 2018 development letter, OWCP notified appellant of the type of medical 

evidence needed to establish her traumatic injury claim. It requested that she provide a narrative 

report from her attending physician, which included a diagnosis and an explanation as to how the 

reported work incident either caused or aggravated a medical condition. OWCP afforded her 30 

days to submit the requested information.

In a December 12, 2017 work excuse note, Dr. Bita Mansouri, a Board-certified family 

practitioner, restricted appellant’s lifting to a maximum of 25 pounds.

 

2 5 U.S.C. § 8101, et seq. 

3 The Board notes that, following the January 22, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

evidence for the first time on appeal. Id.
3

In a follow-up December 27, 2017 note, Dr. Parks recommended that appellant not lift, 

twist her knee, bend, squat, or walk more than 15 minutes at a time. He again recommended 

sedentary desk duty until MRI scan results were reported.

A December 27, 2017 employing establishment incident report indicated that around 5:00

a.m. on December 12, 2017 appellant entered a room where a patient was attempting to get out of 

bed. Appellant rushed over to assist him and slipped on water or urine on the floor. She grabbed

the side rail to prevent herself from falling and twisted her left knee.

On December 29, 2017 appellant accepted a limited-duty assignment.

In early January 2018, Dr. Parks continued to recommend appellant remain on sedentary 

desk duties. The employing establishment offered appellant another limited-duty assignment, 

which she accepted on January 8, 2018.

By decision dated February 14, 2018, OWCP denied appellant’s claim. It found that she

failed to establish that her left knee sprain was causally related to the accepted December 12, 2017

employment incident.

On January 7, 2019 appellant, through counsel, requested reconsideration of the 

February 14, 2018 decision.

By decision dated January 22, 2019, OWCP denied appellant’s request for 

reconsideration.

4

LEGAL PRECEDENT

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

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 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.7 

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 

 

4 On March 7, 2018 OWCP associated nine pages of medical records for a different individual, R.P., with 

appellant’s case record. It found that this additional evidence, received on March 7, 2018, was insufficient to warrant 

further merit review. However, OWCP failed to recognize that the medical evidence did not pertain to appellant and 

had been placed into the wrong file.

5 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).

6 20 C.F.R. § 10.607.

7

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.
4

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.8 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.9

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).

While appellant timely requested reconsideration, she neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law, nor did she advance a 

relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that 

appellant is not entitled to merit review based the first or second requirements under 20 C.F.R. 

§ 10.606(b)(3).

The Board further finds that appellant did not fulfill the third requirement under 20 C.F.R. 

§ 10.606(b)(3). OWCP previously denied her claim because the medical evidence failed to 

establish causal relationship between appellant’s left knee sprain and the accepted December 12, 

2017 employment incident. Since issuing its February 14, 2018 decision, it has not received new 

evidence regarding appellant’s left knee condition. Counsel did not submit any additional 

evidence or argument with the January 7, 2019 request for reconsideration. Therefore, the Board 

finds that appellant also failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).

As appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3) in her request 

for reconsideration, pursuant to 20 C.F.R. § 10.608, OWCP properly found that she was not 

entitled to further merit review of her traumatic injury claim.

CONCLUSION

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

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

 

8 20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(a), (b).
5

ORDER

IT IS HEREBY ORDERED THAT the January 22, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 2019

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