United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ORLANDO VETERANS AFFAIRS MEDICAL 

CENTER, Orlando, FL, Employer

__________________________________________

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Docket No. 19-0808

Issued: October 3, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 5, 2019 appellant, though counsel, filed a timely appeal from a September 6, 

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

than 180 days elapsed from OWCP’s last merit decision, dated August 28, 2017, 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 consider 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 April 4, 2017 appellant, then a 58-year-old medical supply technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 22, 2017 she injured her left shoulder, upper and 

lower back, left hip, and left leg due to a work-related fall. On the reverse side of the claim form, 

the employing establishment acknowledged that she was injured in the performance of duty.

In March 24, 2017 medical records, Dr. Yong Chen, an occupational medicine specialist, 

related that as appellant exited the employing establishment’s soiled utility room and walked into 

a hallway, she slipped and fell on her left side. He conducted a physical examination and

diagnosed appellant with left shoulder contusion/sprain, wrist contusion, a left knee contusion, 

lumbar strain, and left hip contusion. Dr. Chen noted that appellant should not return to work on 

that day.

A June 23, 2017 duty status report (Form CA-17) Dr. Robert Reppy, a preventive medicine 

specialist, indicated that appellant was injured on March 22, 2017, and his clinical findings

included neck and low back pain. The diagnosis was illegible, and the form indicated that appellant 

could not return to work.

In a June 23, 2017 medical report, Dr. Reppy indicated that appellant presented with lower 

back pain radiating through her legs, pain in both of her shoulders, and neck pain extending into

her upper extremities, disproportionately affecting her left side. He related that appellant had 

slipped on something wet while at work on March 22, 2017, causing her to fall backwards, hitting 

the floor first with her upper back and then with her head. She instantly experienced pain and had 

to stop work until the subsequent week, when she was able to return to work full time. Dr. Reppy 

noted that appellant stated she had no medical history of neck or back injuries. He diagnosed 

lumbar and cervical sprains/strains, but noted that these diagnoses were subject to change once 

more information was gathered.

A June 26, 2017 physical capacity evaluation of appellant, a July 5, 2017 upper extremity 

nerve conduction study, a July 5, 2017 study of appellant’s somatosensory evoked responses of 

her upper extremities, and a thoracic outlet syndrome evaluation were received by OWCP. 

In a July 24, 2017 development letter, OWCP informed appellant that additional factual 

and medical evidence was required in support of her claim. It advised her of the factual and 

medical evidence necessary to establish her claim and attached a questionnaire for her completion. 

OWCP afforded appellant 30 days to submit the requested factual and medical evidence. 

By decision dated August 28, 2017, OWCP denied appellant’s traumatic injury claim, 

finding that the she had not established the factual component of fact of injury. It explained that 

there was “no clear explanation of the details surrounding how the injury occurred.” OWCP
3

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

OWCP subsequently received additional medical evidence, including an August 25, 2017 

narrative report from Dr. Reppy who diagnosed partial T12 fracture, cervical stenosis, a right 

fibula closed fracture, lumbar spine facet arthropathy, and disc displacement of the cervical spine. 

Dr. Reppy noted that appellant’s two locations of facet arthropathy represented preexisting

degenerative conditions that were not directly caused by appellant’s workplace fall.

OWCP also received a September 8, 2017 diagnostic report, a September 18, 2017 

magnetic resonance imaging (MRI) scan of appellant’s left shoulder revealing a large fullthickness supraspinatus tendon tear, and a June 8, 2018 physical capacity evaluation. 

On August 28, 2018 appellant, through counsel, requested reconsideration.

By decision dated September 6, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. 

LEGAL PRECEDENT

Section 8128(a) of FECA 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 compensation at any time on his own motion or on application.3

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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the 

 

3

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

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

No. 08-1569 (issued December 9, 2008).

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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. Id. at Chapter 2.1602.4b.

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
4

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

reopening the case for review on the merits.7

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).

The underlying issue in this case was whether appellant has established the factual 

component of fact of injury. On August 28, 2018 counsel submitted the appeal request form that 

accompanied OWCP’s August 28, 2017 decision. Although the request was timely and noted 

appellant was seeking reconsideration, counsel did not otherwise elaborate on the basis of the 

request for reconsideration. The Board finds that the August 28, 2018 request for reconsideration 

neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of 

law. Additionally, counsel did not advance a relevant legal argument not previously considered 

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

or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

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

§ 10.606(b)(3) because she did not submit relevant and pertinent new evidence not previously 

considered by OWCP. While OWCP received additional medical evidence following its 

August 28, 2017 merit decision, as noted, the issue on reconsideration was whether appellant 

established that the March 22, 2017 incident occurred as alleged. Appellant’s April 4, 2017 

Form CA-1 merely noted a fall at work. She has yet to provide a statement in response to OWCP’s 

July 24, 2017 development letter requesting specific details of the alleged March 22, 2017 

employment-related fall. The submission of evidence that does not address the particular issue 

involved does not constitute a basis for reopening a case.9 As such, appellant is not entitled to a 

review of the merits based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3). 10

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).

 

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

20 C.F.R. § 10.606(b)(3)(i) and (ii).

9 C.B., Docket No. 19-0419 (issued July 22, 2019). 

10 20 C.F.R. § 10.606(b)(3)(iii).
5

ORDER

IT IS HEREBY ORDERED THAT the September 6, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 3, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board