United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.W., Appellant

and

DEPARTMENT OF THE NAVY, U.S. FLEET 

FORCES COMMAND, STENNIS SPACE 

CENTER, MS, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-1766

Issued: March 19, 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 22, 2018 appellant filed a timely appeal from an August 10, 2018 nonmerit 

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

elapsed from the last merit decision dated January 25, 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 over the merits of this case.

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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On June 1, 2017 appellant, then a 54-year-old electronic technician, filed a traumatic injury 

claim (Form CA-1), alleging that he sustained “lower back pain, right shoulder, arm, and hand 

pain” injuries on May 30, 2017 while in the performance of duty “lifting gliders with shipping 

container units double-stacked approximately 322 [pounds] each.” He indicated that proper 

equipment was not used and a crane, joist, and pallet jack should have been used to complete the 

job safely.

In a July 12, 2017 report, Dr. David F. Roberts, a family medicine specialist, diagnosed 

low back pain. 

By decision dated August 2, 2017, OWCP accepted that the May 30, 2017 incident 

occurred as alleged, but denied appellant’s claim, finding that he failed to submit evidence 

containing a medical diagnosis in connection with the accepted incident. It noted that Dr. Roberts 

had diagnosed “low back pain,” but that pain is a symptom, not a diagnosis of a medical condition. 

OWCP concluded that appellant had not established fact of injury as he had not met the 

requirements to establish that he sustained an injury as defined by FECA. 

Appellant subsequently submitted a July 31, 2017 magnetic resonance imaging (MRI) scan 

of the right elbow, ordered by Dr. Roberts, which demonstrated mild right common extensor 

tendinopathy.

On August 21, 2017 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. 

In support of his claim, appellant further submitted two reports dated September 5, 2017 

from Dr. Henry T. Leis, a Board-certified orthopedic surgeon, who diagnosed lateral epicondylitis 

and advised that appellant was capable of limited-duty work, effective September 6, 2017. 

By decision dated January 25, 2018, an OWCP hearing representative affirmed the prior 

decision, finding that, although appellant had established that medical conditions were diagnosed 

in connection with the accepted incident, the medical evidence of record was insufficient to 

establish causal relationship between his diagnosed conditions and the accepted May 30, 2017 

employment incident. 

In response, appellant resubmitted the July 31, 2017 MRI scan, as well as the two 

September 5, 2017 reports from Dr. Leis. 

On May 8, 2018 appellant requested reconsideration. He reiterated the factual and medical 

history of his claim and argued that Dr. Leis’ September 5, 2017 medical report was not mentioned 

in the January 25, 2018 hearing representative’s decision. 

By decision dated August 10, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim, finding that he neither advanced a relevant legal argument nor submitted

relevant and pertinent new evidence.
3

LEGAL PRECEDENT

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.3 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.4 

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.5 If the request is timely, but fails to meet at least one of requirements for 

reconsideration, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.6

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).

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

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

Consequently, appellant is not entitled to further 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).

On reconsideration, appellant argued that Dr. Leis’ September 5, 2017 medical report was 

not mentioned in the hearing representative’s decision. The Board finds, however, that Dr. Leis’

reports were previously reviewed and considered by OWCP. 

Appellant further argued on reconsideration that the employing establishment had 

committed a number of violations of agency and EEO regulations. He argued that his injury was 

a result of these violations. These contentions are not legal arguments addressing the underlying 

issue of whether appellant submitted sufficient medical evidence to establish a causal relationship 

 

2 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).

3 20 C.F.R. § 10.607.

4

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.

5 20 C.F.R. § 10.606(b)(3).

6

Id. § 10.608(a), (b).
4

between his diagnosed conditions and the accepted May 30, 2017 employment incident at work.

7

 

The Board has held that the submission of an argument which does not address the particular issue 

involved does not constitute a basis for reopening a case. As such, appellant’s opinions are 

irrelevant to the claim and do not comprise a basis for reopening the case on its merits.8 As he did 

not allege that OWCP erroneously applied or interpreted a specific point of law or advance a 

relevant legal argument not previously considered by OWCP he is not entitled to a review of the 

merits of his claim based on the first and second requirements under section 10.606(b)(3).9

In support of his request for reconsideration, appellant resubmitted an MRI scan dated 

July 31, 2017 and two reports dated September 5, 2017 from Dr. Leis. The Board finds that the 

submission of this medical evidence did not require reopening appellant’s case for merit review 

because appellant submitted the same July 31, 2017 MRI scan and September 5, 2017 reports by

Dr. Leis, which were previously reviewed by OWCP’s hearing representative in her January 25, 

2018 decision. As these reports are substantially similar to evidence already of record, they are 

duplicative and do not constitute relevant and pertinent new evidence. Thus, appellant has not 

established a basis for reopening his case.10

The Board finds that as OWCP properly determined that appellant was not entitled to 

further review of the merits of his claim pursuant to any of the three requirements under section 

10.606(b)(3) it properly denied his request for reconsideration of the merits of his claim under 

5 U.S.C. § 8128(a).11

CONCLUSION

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).

 

7 The Board notes that it is appellant’s burden to submit sufficient evidence to establish a causal relationship. 

John J. Carlone, 41 ECAB 354 (1989).

8

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

9 D.D., Docket No. 18-0648 (issued October 15, 2018).

10 B.B., Docket No. 18-0782 (issued January 11, 2019).

11 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).
5

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 19, 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