United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF THE NAVY, NAVY 

MUNITIONS COMMAND ATLANTIC, 

Colts Neck, NJ, Employer

__________________________________________

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Docket No. 21-0453

Issued: December 8, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 7, 2021 appellant filed a timely appeal from a January 29, 2021 nonmerit 

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

elapsed from OWCP’s last merit decision, dated January 31, 2020, to the filing of the current 

appeal, pursuant to the Federal Employees’Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction to review the merits of this case.

2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 29, 2021 decision, OWCP received additional evidence. 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.
2

ISSUE

The issue is whether OWCP properly denied appellant’s December 31, 2020 request for 

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

FACTUAL HISTORY

On August 29, 2018 appellant, then a 52-year-old materials handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sustained injuries to his right shin and ankle when 

he was struck and run over by a forklift while in the performance of duty. He stopped work on 

that date. OWCP accepted the claim for contusion of the right foot, right foot laceration without 

foreign body, and crushing injury of the right foot. 

By decision dated January 31, 2020, OWCP granted appellant a schedule award for six

percent permanent impairment of his right lower extremity. The award ran for 17.28 weeks from

September 5, 2019 to January 3, 2020. 

In a July 6, 2020 report, Dr. Tiffany K. Wong, a physical medicine and rehabilitation 

specialist, diagnosed right peroneal motor neuropathy, right tibial motor neuropathy, and right 

superficial peroneal sensory neuropathy. 

On December 31, 2020 appellant request for reconsideration. 

In a December 28, 2020 report, Dr. Ian R. Hersh, a podiatric surgery specialist, diagnosed 

right midfoot fractures, crush injury to right foot, and hematoma lower leg with ulceration. He 

indicated that appellant had very little improvement over the prior year and a half, with continued 

pain, numbness, hypersensitivity, and marked loss of function. Dr. Hersh concluded that 

appellant’s injury would leave appellant “with a large degree of permanency” and that his 

prognosis remained fair. 

By decision dated January 29, 2021, 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 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 

3

5 U.S.C. § 8128(a); see J.K., Docket Nos. 19-1420 & 19-1422 (issued August 12, 2020); L.D., Docket No. 18-

1468 (issued February 11, 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).
3

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. If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits. 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.5

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 in his reconsideration request neither alleged nor demonstrated that OWCP 

erroneously applied or interpreted a specific point of law. Additionally, he did not advance any 

relevant legal arguments not previously considered by OWCP. The Board thus finds that appellant 

is not entitled to a review of the merits based on the first or second requirements under 20 C.F.R. 

§ 10.606(b)(3).6

Appellant also failed to submit relevant and pertinent new evidence. OWCP received a 

July 6, 2020 report from Dr. Wong, who diagnosed right peroneal motor neuropathy, right tibial 

motor neuropathy, and right superficial peroneal sensory neuropathy. However, Dr. Wong did not 

address the underlying issue of permanent impairment. OWCP also received a December 28, 2020 

report from Dr. Hersh who opined that the injury would leave appellant with permanent 

impairment; however, Dr. Hersh did not offer an opinion addressing the extent of impairment. The 

submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case.7 As such, appellant is not entitled to a review of the merits 

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

The Board accordingly finds that appellant has not met 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.8

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 § 10.608(b); D.L., Docket No. 18-0449 (issued October 23, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

6

Id. at § 10.606(b)(3)(i) and (ii).

7 M.K., Docket No. 18-1623 (issued April10, 2019);Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

8 D.L., supra note 5; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued 

April 10, 2017); A.M., Docket No. 16-0499 (issued June28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); 

M.E., 58 ECAB 694 (2007); SusanA. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet 

at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the request without 

reopening the case for a review on the merits).
4

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that OWCP properly denied appellant’s December 31, 2020 request for 

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

ORDER

IT IS HEREBY ORDERED THAT the January 29, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 8, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board