United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Cincinnati, OH, Employer

__________________________________________

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Docket No. 18-0814

Issued: January 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 March 7, 2018 appellant, through counsel, filed a timely appeal from a February 15, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days have elapsed from the last merit decision, dated November 7, 2016, 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 to review the merits of this case.

 

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 5 U.S.C. § 8101 et seq.
2

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 March 23, 2016 appellant, then a 51-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on March 18, 2016, she injured her right shoulder, right lower back, 

and right ankle/foot. She attributed her injury to an overcrowded room, which reportedly included 

a patient’s electric wheelchair, bed, reclining chair, and intravenous (IV) poles. On the reverse 

side of the Form CA-1, the employing establishment indicated that appellant was injured in the 

performance of duty and that she had been seen by a nurse at its facility on March 18, 2016.

A March 23, 2016 note from Barry J. Wanninger, a certified physician assistant, indicated 

that appellant was treated earlier that day in the emergency department at Mercy Hospital of 

Fairfield. He advised that appellant could return to work on March 26, 2016. The accompanying 

emergency department treatment notes indicated that appellant worked as a nurse and reported 

having tripped and fell five days ago. Appellant stated that she fell backwards and believed she 

tripped over an IV pole. Right shoulder and right ankle x-rays obtained on March 23, 2016 

revealed no evidence of an acute injury. Mr. Wanninger placed appellant in an air cast, prescribed 

a muscle relaxant (Robaxin), and discharged her with a clinical impression of right shoulder and 

right ankle pain.

A May 5, 2016 right ankle magnetic resonance imaging (MRI) scan revealed, inter alia, 

tendinopathy, tenosynovitis, degenerative changes, and a thickened anterior talofibular ligament, 

consistent with a prior sprain. Appellant was reportedly injured in March 2016 when an IV pole 

fell on her right ankle. 

In an October 4, 2016 development letter, OWCP informed appellant of the evidence 

necessary to establish her claim and requested that she submit additional factual and medical 

evidence. It noted that she had not clearly specified how her injury occurred and, as such, the 

evidence of record was insufficient to establish that she actually experienced the incident alleged 

to have caused her injury. OWCP requested that appellant explain how the “crowded room”

caused her March 18, 2016 alleged employment injury. It further noted that it had not received 

sufficient medical evidence to support her claim. OWCP afforded appellant 30 days to submit 

additional evidence and to respond to its inquiries. It did not receive additional evidence within 

the allotted time.

By decision dated November 7, 2016, OWCP denied appellant’s claim, finding that she 

had not submitted a statement clearly explaining how she was injured on March 18, 2016. It also 

noted that she had not submitted medical evidence containing a diagnosis in connection with her 

alleged employment injury. 
3

OWCP subsequently received a September 7, 2016 physical therapy treatment note with a 

diagnosis of right posterior tibialias tendinitis.3

On October 3, 2017 counsel timely requested reconsideration of OWCP’s November 7, 

2016 decision. He also submitted various treatment records from appellant’s podiatrists,

Dr. Cynthia Miller and Dr. Michael C. Doran, which covered the period April 17, 2013 through 

March 11, 2014, January 5 through February 3, 2015, and April 19, 2016 through June 1, 2017. 

Dr. Miller began treating appellant on April 17, 2013 for a right ankle injury that reportedly 

occurred three weeks prior when appellant fell off a treadmill. Appellant followed up with

Dr. Miller regularly through March 11, 2014.

In a report dated January 5, 2015, Dr. Miller examined appellant for complaints of bilateral 

heel pain. She diagnosed calcaneal spur, plantar fascial fibromatosis, enthesopathy, and bursitis. 

Appellant continued to follow up with Dr. Miller through February 3, 2015. 

In a report dated April 19, 2016, Dr. Miller examined appellant for complaints of right foot 

pain of a “few weeks” duration. Appellant told Dr. Miller that, while at work, she tripped over 

some cords and fell. She noted that when she fell, “everything came on top of her.” Dr. Miller 

diagnosed foot and ankle arthritis, edema, tendon rupture, posterior tibial tendinitis, and plantar 

fasciitis. Appellant continued to follow up with Dr. Miller through June 1, 2017. 

By decision dated February 15, 2018, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of her claim. It explained that the medical evidence 

submitted on reconsideration was not relevant to the issue of whether appellant established that 

the March 18, 2016 employment incident occurred as alleged. 

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6 

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 

 

3 The physical therapy treatment note was accompanied by a request for authorization for medical services provided 

on September 7, 2016.

4 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/her] own motion or on application.” 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

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 the OWCP 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.7 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.8

ANALYSIS

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

5 U.S.C. § 8128(a).

In his correspondence received on October 3, 2017, counsel noted that he was submitting 

various medical records on reconsideration. However, he did not show that OWCP erroneously 

applied or interpreted a specific point of law or advance a relevant legal argument not previously 

considered by OWCP. Thus, appellant is not entitled to a review of the merits based on the first 

and second requirements under section 10.606(b)(3).9

Counsel also failed to submit relevant and pertinent new evidence with the October 3, 2017 

request for reconsideration. As noted, he submitted various medical records from appellant’s 

podiatrists, some of which predated the alleged March 18, 2016 employment incident. The 

underlying issue in this case is whether appellant established that the employment incident of 

March 18, 2016 occurred as alleged. A claimant may be entitled to a merit review by submitting 

pertinent new and relevant evidence, but appellant did not do so in this case.10 While Dr. Miller’s 

April 19, 2016 treatment notes contained a history of injury as communicated by appellant, she

has yet to provide OWCP her own personal statement or any witness statements regarding the 

circumstances of the alleged March 18, 2016 employment incident.11 The Board has held that the 

submission of evidence that does not address the particular issue in the case does not constitute a 

basis for reopening the claim.12 Because appellant did not provide relevant and pertinent new 

evidence she is not entitled to a review of the merits based on the third requirement under section 

10.606(b)(3).13 Accordingly, OWCP properly denied appellant’s request for reconsideration under 

5 U.S.C. § 8128(a).

 

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9 20 C.F.R. § 10.606(b)(3)(i) and (ii).

10 Id. at § 10.606(b)(3)(iii).

11 See B.P., Docket No. 16-1549 (issued January 18, 2017).

12 See David J. McDonald, 50 ECAB 185 (1998).

13 20 C.F.R. § 10.606(b)(3)(iii).
5

CONCLUSION

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).

ORDER

IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 18, 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