United States Department of Labor

Employees’ Compensation Appeals Board

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K.F., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

309th MAINTENANCE SUPPORT SQUADRON,

HILL AIR FORCE BASE, UT, Employer

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Docket No. 18-1279

Issued: February 22, 2019

Appearances: Case Submitted on the Record

David J. Holdsworth, 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 June 11, 2018 appellant, through counsel, filed a timely appeal from a January 8, 2018 

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

days has elapsed from the last merit decision, dated September 18, 2017, to the filing of this appeal,

 

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

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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On June 29, 2017 appellant, then a 38-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) for a torn left Achilles tendon that allegedly occurred while he was 

playing basketball on June 27, 2017 while in the performance of duty. He reported that as he 

jumped, his Achilles snapped. The alleged June 27, 2017 incident occurred at 2:20 p.m. at the 

employing establishment’s on-premises Warrior Fitness Center.4 Appellant stopped work on the 

date of injury.

Appellant was treated at the employing establishment’s occupational health unit by an 

unknown provider who noted that appellant was seen on June 27, 2017 for left ankle pain. He was 

released to work with medical restrictions.

In a July 5, 2017 examination note, Dr. Robert S. Rice, a Board-certified orthopedic 

surgeon, related that appellant was under his care following surgery on June 30, 2017 to repair his 

left Achilles tendon. He requested that appellant be excused from work from June 30 to 

July 13, 2017. 

In a July 13, 2017 doctor’s note, Michael Pulley, a certified physician assistant, related that 

appellant was under his care following a recent Achilles surgery. He noted that appellant could 

not work for another two weeks. 

In a July 14, 2017 letter, the employing establishment controverted appellant’s claim, 

including entitlement to continuation of pay, noting that physical exercise was not a requirement 

of his position as a maintenance mechanic. It provided a copy of a maintenance mechanic position 

description.

In an August 14, 2017 occupational health note, Dr. Neal Taylor, a Board-certified family 

practitioner, reported that appellant could return to work with restrictions.

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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. 

4 Appellant’s regular tour of duty was Monday through Friday, 6:00 a.m. to 3:30 p.m. 
3

Mr. Pulley continued to treat appellant and completed work status notes dated July 28 to 

August 14, 2017. He related that appellant was under his care following recent surgery and could 

work light duty with restrictions of no lifting more than 25 pounds; no running, and jumping, 

climbing; and no bending or squatting with more than 15 pounds. 

On August 14, 2017 appellant returned to full-time modified-duty work. 

By development letter dated August 15, 2017, OWCP informed appellant that his claim 

had initially been accepted as a minor injury, but was now being reopened for consideration of the 

merits. It requested that he respond to an attached development questionnaire and provide medical 

evidence to establish that he sustained a diagnosed condition as a result of the alleged employment 

incident. OWCP afforded appellant 30 days to submit the necessary evidence. A similar letter 

was sent to the employing establishment.

In an August 22, 2017 letter, Dr. Rice described that on June 27, 2017 appellant was 

playing basketball at the employing establishment’s gym during his “work-provided recreational 

time” when he injured his left ankle. He indicated that appellant was treated in his office on 

June 28, 2017 and was placed in a fracture boot. Dr. Rice related that a magnetic resonance 

imaging (MRI) scan showed a severe partial to complete tear of appellant’s left Achilles tendon. 

He reported that on June 30, 2017 appellant underwent surgery to repair the Achilles tendon. 

On August 28, 2017 OWCP received appellant’s response to its development letter. He 

related that, on June 27, 2017, he was playing basketball during “approved gym time” at the 

employing establishment when he injured his left Achilles tendon. Appellant reported that he 

informed J.G., his supervisor, who escorted him to occupational medical services. He explained 

that he was not required to participate in the physical fitness time, but it was an opportunity 

provided by his employer. Appellant noted that his approved physical fitness time occurred during 

regular work hours.

OWCP received a statement from J.G. who confirmed that, on June 27, 2017, appellant 

informed him that he sustained a left ankle injury while on approved gym time. It also received a 

statement from M.F., an employee, who related that on June 27, 2017 appellant was participating 

in a basketball game and chasing down a ball when he suddenly fell over. 

In a September 11, 2017 note, Mr. Pulley related that appellant was progressing well with 

physical therapy. He opined that appellant could continue to work without restrictions. 

On September 13, 2017 appellant returned to full-time regular-duty work. 

By decision dated September 18, 2017, OWCP denied appellant’s claim finding that he 

was not in the performance of duty when injured on June 27, 2017. It noted that according to the 

employing establishment, appellant’s participation in the basketball game was not related to his 

employment as a mechanic, nor was he required to participate in the activity. 

Following the September 18, 2017 decision, OWCP received several physical therapy 

notes dated September 18 to October 4, 2017.

On October 16, 2017 appellant requested reconsideration. 
4

Appellant submitted physical therapy reports dated October 16 to 30, 2017. 

By decision dated January 8, 2018, OWCP denied further merit review of appellant’s claim 

pursuant to 5 U.S.C. § 8128(a). It found that his reconsideration request neither raised substantive 

legal questions, nor included new and relevant evidence sufficient to warrant further merit review

of his claim.

LEGAL PRECEDENT

Section 8128(a) of FECA5 vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.6 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.7 

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.8 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.9 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.10

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 show that OWCP erroneously applied or interpreted a specific point of 

law, and he did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, he is not entitled to review of the merits of his claim based on the first and second 

above-noted requirements under 20 C.F.R. § 10.606(b)(3).11 

 

5 Supra note 2.

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

8 20 C.F.R. § 10.607(a).

9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10 20 C.F.R. § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

11 T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).
5

Along with his reconsideration request, appellant submitted a series of physical therapy 

notes dated September 18 to October 30, 2017. The Board finds that these notes failed to address 

the underlying issue of whether appellant sustained a traumatic injury while in the performance of 

duty on June 27, 2017, as alleged. The submission of evidence that does not address the particular 

issue involved does not constitute a basis for reopening a case.12 Thus, appellant was also not 

entitled to a review of the merits of his claim based on the third above-noted requirement under 20 

C.F.R. § 10.606(b)(3).13 

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3) and thus OWCP properly denied merit review. On appeal, counsel argues that 

OWCP acted erroneously in denying appellant’s claim, and related that OWCP had previously 

accepted appellant’s claim for a right leg injury under similar circumstances. As noted above, 

however, the Board lacks jurisdiction over the merits of this claim. 

CONCLUSION

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

pursuant to 5 U.S.C. § 8128(a).

 

12 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13 J.W., Docket No. 17-1943 (issued January 28, 2019); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
6

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 22, 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