United States Department of Labor

Employees’ Compensation Appeals Board

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D.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. SECRET SERVICE, COMMUNICATIONS 

CENTER, Washington, DC, Employer

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Docket No. 20-1203

Issued: April 28, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 27, 2020 appellant filed a timely appeal from a January 2, 2020 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed 

from the last merit decision, dated April 22, 2019, 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 claim. 

 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because he wished 

to substantiate his claims with allowable evidence to obtain a favorable resolution. The Board, in exercising its 

discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be addressed 

in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a 

Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based 

on the case record as submitted to the Board.

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

FACTUAL HISTORY

On March 1, 2019 appellant, then a 33-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on February 26, 2019 he sustained lower back and neck 

pain when he was driving to work in a government-owned vehicle and was rear-ended by another 

vehicle while in the performance of duty.

In a report dated February 26, 2019, Dr. Ramin Javan, a Board-certified neuroradiologist, 

related that he had examined appellant in a hospital emergency department after appellant was 

involved in a motor vehicle collision. A computerized tomography (CT) scan of the cervical spine, 

obtained due to indication of neck pain, demonstrated no evidence of acute displaced fracture, 

normal alignment, and degenerative changes of the spinal canal.

By development letter dated March 19, 2019, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to 

establish his claim and afforded him 30 days to submit the necessary evidence.

Thereafter, OWCP received a billing statement for hospital services dated March 14, 2019.

By decision dated April 22, 2019, OWCP accepted that the February 26, 2019 employment 

incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that 

he had not submitted evidence containing a medical diagnosis in connection with the accepted 

employment incident.

On July 11, 2019 appellant requested reconsideration. He submitted a hospital emergency 

department clinical summary from Dr. Javan dated February 26, 2019 who noted that appellant 

suffered neck pain and left-sided lower back pain after his vehicle was struck from behind at a 

traffic light. On physical examination Dr. Javan observed mild tenderness to deep palpation of the 

left lower back. The February 26, 2019 CT scan findings were resubmitted. Patient instructions 

were provided relating to neck pain with no trauma and a motor vehicle collision with no serious 

injury.

By decision dated July 12, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted on 

reconsideration was cumulative and substantially similar to evidence that was already contained 

in the case file and had been previously considered.

In an emergency department report dated February 26, 2019, Dr. Leah Steckler, a specialist 

in emergency medicine, and, attending physician, Dr. Natalie Kirilichin, Board-certified in 

emergency medicine, noted that appellant had been involved in a motor vehicle collision in which 

he was rear-ended with no airbag deployment. Appellant complained of neck pain and left-sided 

lower back pain. Also included in the emergency department report was the ICD-10 code 

corresponding to an assessment of person injured in a motor vehicle accident. This report also 
3

related that x-rays of appellant’s lumbosacral spine obtained on February 26, 2019 due to an 

indication of lumbar pain demonstrated no acute fracture or dislocation, normal alignment, and no 

soft tissue abnormality. Similarly, an x-ray of the sacrum and coccyx obtained on the same date 

demonstrated no acute fracture or dislocation, intact sacroiliac joints, and unremarkable soft 

tissues.

On October 4, 2019 appellant again requested reconsideration.

By decision dated January 2, 2020, OWCP denied appellant’s request for reconsideration 

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

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 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 

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

reopening the case for review on the merits.7

 

3 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); 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 (iFECS). Id. at Chapter 2.1602.4b.

6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
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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’s October 4, 2019 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board 

finds that it 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 either 

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

In support of his reconsideration request, appellant submitted a complete copy of the 

February 26, 2019 emergency department. The completed report included results of x-rays of the 

lumbosacral spine, sacrum and coccyx demonstrating normal findings with no acute fractures or 

dislocations and the ICD-10 code corresponding to an assessment for person injured in a motor 

vehicle accident. These portions of the February 26, 2019 emergency department report, like the 

portions previously submitted, note appellant’s history of injury, but do not contain a valid 

diagnosis of a condition.8 The Board has held that the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.9 As 

appellant failed to provide relevant and pertinent new evidence, he is not entitled to a merit review 

based on the third requirement under 20 C.F.R. § 10.606(b)(3).

The Board, accordingly, finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

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).

 

8 See C.C., Docket No. 20-0590 (issued October 29, 2020); M.J., Docket No. 19-1979 (issued August 12, 2020);

K.V., Docket No. 18-0723 (issued November 9, 2018); J.S., Docket No. 18-0726 (issued November 5, 2018).

9 A.J., Docket No. 20-0926 (issued January 26, 2021); Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew 

Diekemper, 31 ECAB 224 (1979).
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ORDER

IT IS HEREBY ORDERED THAT the January 2, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board