United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, ALTUS 

AIR FORCE BASE, Altus, OK, Employer

__________________________________________

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Docket No. 21-1028

Issued: February 7, 2022

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 June 21, 2021 appellant filed a timely appeal from a February 10, 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 December 8, 2020, 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.

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).

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the February 10, 2021 decision, OWCP received additional evidence. 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

FACTUAL HISTORY

On October 1, 2020 appellant, then a 30-year-old fire protection and prevention specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on October 1, 2020 she sprained the 

anterior talofibular ligament (ATFL) of her left ankle when she lost feeling and blood flow as she 

was stepping down from a bunkroom bed while in the performance of duty. She stopped work on 

the date of injury. 

In a visit summary dated October 1, 2020, Dr. Jentry McLaughlin, a Board-certified 

emergency medicine specialist, noted a diagnosis of sprain of the ATFL of the left ankle. He 

recommended that appellant continue to administer ice and compression, take anti-inflammatory 

medication, and avoid any strenuous activity for the next 24 hours.

In a letter dated October 2, 2020, Dr. Elvira Tolentino, a family physician, noted a 

diagnosis of severe left foot sprain and advised that appellant remain off from work for two weeks

beginning October 5 through 18, 2020. 

In a subsequent letter dated October 15, 2020, Dr. Tolentino recommended that appellant 

undergo a magnetic resonance imaging (MRI) scan of the left ankle. She diagnosed a severe left 

foot and left ankle sprain. Dr. Tolentino advised that she remain out of work until November 2, 

2020, pending the MRI scan results. 

OWCP, in an October 21, 2020 development letter, informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to respond. No responsewas 

received.

By decision dated December 8, 2020, OWCP accepted that the October 1, 2020 

employment incident occurred as alleged. However, it denied appellant’s claim, finding that the 

medical evidence submitted was insufficient to establish causal relationship between the accepted 

October 1, 2020 employment incident and her diagnosed left foot and ankle conditions. 

On January 7, 2021 appellant requested reconsideration of the December 8, 2020 decision.

By decision dated February 10, 2021, OWCPdenied appellant’s request for reconsideration 

of the merits of her 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 

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); W.C., 59 ECAB 372 (2008).
3

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

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’s January 7, 2021 timely 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. Accordingly, appellant is not entitled to a review of the merits of her claim based on the 

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

In support of her request for reconsideration, appellant did not submit any pertinent new 

and relevant medical evidence. The underlying issue in this case is causal relationship, which is

medical in nature and, therefore, can only be addressed by submission of rationalized medical 

evidence from a qualified physician. Therefore, appellant is not entitled to further review of the 

merits of her claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).9

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.

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). 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); J.V., Docket No. 21-0252 (issued September 23, 2021); B.S., Docket No. 20-0927 (issued 

January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

See J.V., id.; C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued October 25, 

2018); C.N., supra note 4.

9

Id.
4

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).

ORDER

IT IS HEREBY ORDERED THAT the February 10, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 7, 2022

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