United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Arlington, VA, Employer

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Docket No. 19-0066

Issued: May 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 10, 2018 appellant filed a timely appeal from a May 31, 2018 nonmerit 

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

elapsed from OWCP’s last merit decision, dated March 8, 2018, 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 this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 31, 2018 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 additional 

evidence for the first time on appeal. Id.
2

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).

FACTUAL HISTORY

On January 18, 2017 appellant, then a 52-year-old deputy marshal, filed a traumatic injury 

claim (Form CA-1) for a wrist/arm injury, which he attributed to using a battering ram on 

January 16, 2017 to breach the door of a fugitive’s residence while in the performance of duty. He 

indicated that he struck the door three times with the ram and developed wrist pain that radiated 

up his arm. The employing establishment indicated that appellant received continuation of pay 

(COP) beginning January 16, 2017.3

A January 17, 2017 report from Dr. Jeffrey N. Guttman, a Board-certified orthopedic 

surgeon, related that appellant presented with left wrist pain and was “[status post] injury yesterday 

while knocking down door ... using a battering ram ... at the time of injury.” Dr. Guttman noted 

the pain to be moderately severe, sharp, and localized to the distal ulna, and that pain is worse with 

forearm rotation. Under medical history, he concluded, “noncontributory to the current problem.” 

In his examination of appellant’s left wrist, Dr. Guttman noted soft tissue swelling, tenderness over 

the distal ulna, that range of motion testing was limited by pain, strength was limited by pain, but 

he found no gross instability on stress testing. After a left wrist x-ray taken the same day, he

diagnosed a distal ulna fracture, and a triangular fibrocartilage complex (TFCC) tear, and 

prescribed a wrist support brace. Dr. Guttman authorized magnetic resonance imaging (MRI)

scan, prescribed nonsteroidal anti-inflammatory drugs, and indicated that appellant could perform 

only light-duty work until further notice. He ordered a follow-up appointment after the MRI scan.

In Part B of an undated authorization for examination and/or treatment (Form CA-16),

Dr. Guttman diagnosed left wrist sprain, with a differential (rule out) diagnosis of occult fracture 

and TFCC tear.4 He checked a box marked “Yes,” indicating his belief that appellant’s condition 

was caused or aggravated by appellant’s employment.

A January 18, 2017 left wrist MRI scan revealed: (1) an incomplete fracture at the base of 

the ulnar styloid; (2) ulnar and central TFCC tear; (3) a lunotriquetral ligament tear; and (4) ulnar 

subluxation of the extensor carpi ulnaris (ECU) tendon with tear of the subsheath.

In a February 21, 2017 follow-up report, Dr. Guttman diagnosed left distal ulna fracture 

and TFCC tear with a January 16, 2017 date of injury. He prescribed occupational therapy and 

advised appellant to follow up in four weeks. In his March 21, 2017 follow-up treatment notes,

 

3 Under OWCP File No. xxxxxx449, appellant has an accepted traumatic injury claim for right finger closed 

dislocation, left wrist sprain, and left elbow contusion, with a July 21, 2010 date of injury. Under OWCP File No. 

xxxxxx190, he has an accepted traumatic injury claim for left wrist sprain and bilateral knee contusion, with a 

February 24, 2006 date of injury. To date these claims have not been administratively combined with the current 

claim, OWCP File No. xxxxxx265.

4 On January 17, 2017 the employing establishment authorized medical treatment for appellant’s wrist/arm (Form 

CA-16).
3

Dr. Guttman continued to diagnose left distal ulna fracture and TFCC tear. He noted that 

appellant’s pain was improving and less sharp, while remaining mild-to-moderately severe and 

was worse with forearm rotation. Dr. Guttman provided instructions on a home exercise program 

and recommended continued physical therapy. Appellant was to follow up in another four weeks. 

When appellant returned on April 24, 2017, his left wrist diagnoses were unchanged and

Dr. Guttman administered a corticosteroid injection. Dr. Guttman advised appellant to follow up 

in two to three weeks.

By development letter dated May 19, 2017, OWCP noted that appellant’s claim originally 

appeared to be a minor injury that resulted in minimal or no lost time from work. It further noted 

that it initially authorized payment for a limited amount of medical expenses, but because the 

medical expenses had exceeded $1,500.00, the case had been reopened for consideration. OWCP

informed appellant that his claim was deficient and advised him of the type of medical evidence 

needed to establish the claim.

5

 It afforded appellant 30 days to submit the necessary medical 

evidence.

In a May 22, 2017 follow-up report, Dr. Guttman continued to diagnose left distal ulna 

fracture and TFCC tear with a January 16, 2017 date of injury “while knocking down door.” He 

advised that appellant was able to return to work full duty with no restrictions.

By decision dated June 30, 2017, OWCP denied appellant’s claim, finding that he had not 

met his burden of proof to establish causal relationship between the January 16, 2017 employment 

incident and the claimed left wrist conditions.

Following its June 30, 2017 decision, OWCP received requests for physical/occupational 

therapy from Dr. Guttman dated February 21, March 21, and April 24, 2017. It also received a 

February 27, 2017 initial physical therapy evaluation, and physical therapy progress notes through 

April 21, 2017.

On July 31, 2017 appellant requested reconsideration. He submitted an amended copy of 

the Form CA-16, which was dated January 25, 2017. Dr. Guttman noted that appellant injured his 

left wrist at work. The form report also included findings of left wrist distal ulna fracture and 

TFCC tear. Dr. Guttman also noted light-duty work restrictions effective January 17, 2017.

By decision dated October 26, 2017, OWCP, following a merit review, denied 

modification of the prior decision, finding that the evidence submitted remained insufficient to 

establish causal relationship.

OWCP subsequently received additional physical therapy treatment records dated through 

June 16, 2017.

On December 12, 2017 appellant requested reconsideration. He submitted a December 1, 

2017 report from Dr. Guttman, which noted that he previously treated appellant for a left distal 

ulna fracture and TFCC tear status post a work-related injury on January 16, 2017. Dr. Guttman 

 

5 OWCP noted that appellant’s physician should differentiate the current claimed injury from the symptoms of his 

preexisting left wrist injuries as noted under OWCP File Nos. xxxxxx190 and xxxxxx449.
4

further noted that, at the time of injury, appellant worked as a U.S. Marshal and was injured while 

using a battering ram to knock down a door. He explained that appellant’s history, physical 

examination, x-rays, and MRI scans were all consistent with the diagnosis. Dr. Guttman also 

indicated that appellant denied any prior history of wrist pain or injury. In closing, he stated that 

it was his opinion, within a reasonable degree of medical certainty, that the diagnosis was directly 

causally related to the work-related injury on January 16, 2017, as described by appellant.

By decision dated March 8, 2018, OWCP reviewed the merits of the claim based on

Dr. Guttman’s note of December 1, 2017. However, it denied modification of the prior decision, 

finding that the newly submitted evidence remained insufficient to establish causal relationship.

On May 23, 2018 appellant again requested reconsideration via the appeal request form 

that accompanied OWCP’s March 8, 2018 merit decision. No additional evidence was received.

By decision dated May 31, 2018, 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 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

 

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.

9

Id. at § 10.606(b)(3).

10 Id. at § 10.608(a), (b).
5

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).

On May 23, 2018 appellant requested reconsideration via the appeal request form that 

accompanied OWCP’s March 8, 2018 decision. He neither alleged nor demonstrated that OWCP 

erroneously applied or interpreted a specific point of law. Additionally, appellant did not advance 

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

appellant is not entitled to a review of the merits based on either the first or second requirements 

under 20 C.F.R. § 10.606(b)(3).11

The Board further finds that appellant did not submit any relevant and pertinent new 

evidence in support of his May 23, 2018 request for reconsideration. Therefore, appellant also 

failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).12

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

May 23, 2018 request for reconsideration, the Board finds that, pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review.

CONCLUSION

OWCP properly denied appellant’s request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a).

 

11 R.R., Docket No. 18-1562 (issued February 22, 2019).

12 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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