United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

El Monte, CA, Employer

__________________________________________

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Docket No. 21-0947

Issued: February 6, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 4, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision 

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

from the last merit decision on this issue, dated January 10, 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 7, 2021 decision, appellant submitted additional evidence to the Board

on appeal. However, the Board’s Rules of Procedures 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 request for reconsideration of the 

merits of her claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On April 18, 2017 appellant, then a 54-year-old revenue agent, filed a traumatic injury 

claim (Form CA-1) alleging that on April 13, 2017 she sustained low back and lower abdominal 

injuries when a chair she was about to sit in rolled from under her, causing her to fall sideways

onto the floor while in the performance of duty. In a supporting statement, she noted the immediate 

onset of tingling in the lumbar spine, which progressed overnight to significant pain.

Prior to the present claim, appellant had filed claims for previous employment injuries

accepted by OWCP: OWCP File No. xxxxxx763, accepted for cervical spine subluxations at C3, 

C5, and C7 sustained in a September 11, 1987 work-related motor vehicle accident; OWCP File 

No. xxxxxx505, accepted for a lumbar strain sustained on August 20, 1996 when she lifted a heavy 

case file; and OWCP File No. xxxxxx606, accepted for bilateral carpal tunnel syndrome, right 

epicondylitis, and bilateral shoulder tendinitis.

In an April 19, 2017 report, Dr. Jane Wu, an internist, recounted that on April 13, 2017,

appellant had fallen from a chair at work and had developed vaginal bleeding and lower abdominal 

pain. On examination, she observed tenderness to palpation of both lower abdominal quadrants. 

Dr. Wu diagnosed diarrhea and nausea. She prescribed medication.

In an April 27, 2017 report, Dr. J. Alex Lira, a Board-certified internist, diagnosed rightsided neck pain and low back pain. He ordered x-rays of the cervical and lumbar spine. April 27, 

2017 x-rays of the cervical spine demonstrated mild degenerative disc disease at C5-6 with mild 

bilateral neural foraminal narrowing, greater on the right. April 27, 2017 x-rays of the lumbar 

spine demonstrated mild degenerative disc narrowing at L4-5 and L5-S1, accentuated by facet 

sclerosis and hypertrophy, grade 1 anterior listhesis of L4 relative to L5 secondary to facet 

hypertrophy.

In a report of April 27, 2017, Dr. Fidel F. Pinzon, a Board-certified anatomic pathologist, 

opined that appellant had injured her neck and low back while at work on April 13, 2017, when 

she sat down on a chair and fell to the floor.3

In a May 23, 2017 work slip, Dr. Deslin Thomas, a Board-certified family practitioner, 

held appellant off from work that day and returned her to work effective May 24, 2017.

On June 29, 2017 appellant filed a claim for compensation (Form CA-7) for disability from 

work for the period June 4 through 24, 2017.

3 OWCP also received an April 14, 2017 work slip and report by Daniel H. Tran, a physician assistant, and reports 

dated from April 14 through June 30, 2017 by Stephen A. Harvey, a physician assistant. 
3

In a development letter dated July 10, 2017, OWCP informed appellant of the deficiencies 

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

questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

On July 11 and 27, 2017 appellant filed Form CA-7 claims for disability from work for the 

period June 25 to July 22, 2017.

By decision dated August 31, 2017, OWCP accepted that the April 13, 2017 employment 

incident occurred as alleged, but denied the claim as the medical evidence of record was 

insufficient to establish a medical diagnosis in connection with the accepted employment incident. 

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

FECA.

A December 9, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine 

demonstrated severe facet degeneration at L4-5 with spondylolisthesis, lateral recess stenosis, and 

foraminal stenosis.

In a June 16, 2018 duty status report (Form CA-17), Dr. Bryan X. Lee, a pain management 

specialist, recounted the April 13, 2017 employment incident and diagnosed lumbar and cervical 

facet syndrome with chronic pain and lumbar stenosis. He noted work restrictions.

On July 31, 2018 appellant requested reconsideration. 

In a September 18, 2018 attending physician’s report (Form CA-20), Dr. Lee diagnosed 

cervical disc degeneration, lumbar disc degeneration, and lumbar stenosis. He opined that the 

lumbar spinal disc degeneration was causally related to the April 13, 2017 employment incident. 

Dr. Lee returned appellant to light-duty work with restrictions. 

In a September 18, 2018 Form CA-17, Dr. Lee opined that appellant’s lumbar disc disease 

had been caused by the April 13, 2017 employment incident. He returned appellant to full-time 

light-duty work with restrictions.

By decision dated October 29, 2018, OWCP modified its August 31, 2017 decision finding 

that a medical diagnosis was provided. However, the claim remained denied as causal relationship 

had not been established. 

In an August 15, 2019 Form CA-20, Dr. Lee opined, with an affirmative check mark, that 

the April 13, 2017 employment incident had caused lumbar disc disease,4spinal stenosis, and facet 

syndrome. He noted that her “desk job” would increase back and neck pain. Dr. Lee found 

appellant totally disabled from work for the period August 15 through October 25, 2019. 

4 A July 15, 2019 MRI scan of the cervical spine demonstrated multilevel degenerative disc disease without central 

canal stenosis or neuroforaminal narrowing.
4

In an August 15, 2019 Form CA-17, Dr. Lee diagnosed cervical disc disease and lumbar 

spinal stenosis. He indicated that these conditions were causally related to the April 13, 2017 

employment incident.

On October 15, 2019 appellant requested reconsideration. She contended that the April 13, 

2017 employment incident had aggravated her prior employment injuries.

On October 15, 2019 OWCP received operative reports by Dr. Lee dated from February 27

through July 29, 2019 of a series of right-sided L4-5 intra-articular injections.

By decision dated January 10, 2020, OWCP denied modification of the prior decision.

On January 16 and February 6, 2020 appellant underwent a series of cervical intra-articular

injections performed by Dr. Marc E. Lynch, an osteopathic physician specializing in pain 

management.

On March 3, 2020 OWCP received an April 20, 2017 e-mail from the employing 

establishment regarding appellant’s request to have her desk chair repaired. 

On March 3, 2020 OWCP received a July 19, 2019 report by Dr. Albert Tsai, a Boardcertified orthopedic surgeon, who recounted that appellant injured her left shoulder on May 29, 

2019 when she pulled paper from a jammed printer. Dr. Tsai obtained left shoulder x-rays, which 

were negative. He prescribed an intra-articular injection and physical therapy to address a left 

rotator cuff issue. Dr. Tsai opined that appellant’s symptoms of numbness and pain in the left 

upper extremity and hand were likely related to her neck.

On March 3, 2020 OWCP received October 17, 2019 and January 13, 2020 reports by

Dr. Lynch, who noted a history of neck pain that had developed gradually over several months. 

Dr. Lynch diagnosed chronic pain syndrome, cervical radiculitis, cervical spondylosis with 

myelopathy, cervicalgia, disc disorder of the cervical region, and muscle spasms of neck.

On March 6, 2020 appellant requested reconsideration. She contended that the April 13, 

2017 employment incident caused a cervical spine injury and aggravated employment injuries

accepted under prior claims.

By decision dated March 26, 2020, OWCP denied reconsideration of the merits of 

appellant’s claim, finding that the additional evidence submitted was duplicative or irrelevant to 

the claim. 

On October 21, 2020 appellant requested reconsideration. In a supporting statement, dated 

October 15, 2020, she contended that OWCP should accept her claim and grant COP as it had 

accepted the April 13, 2017 employment incident as factual, granted COP under a similar situation 

under OWCP File No. xxxxxx505, and had initially processed the present claim as a limited shortterm closure.

By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of her claim.
5

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 or her own motion or on application.5

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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration.9

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).

In her reconsideration request, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law and did not advance a new and relevant legal argument not 

previously considered. Consequently, she was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R § 10.606(b)(3).10

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP. Appellant’s reconsideration request consisted of her 

October 15, 2020 statement. She contended that OWCP should accept her claim as it had accepted 

5 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).

6 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).

7

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 (September 2020). 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.

8

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

9

Id. at § 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued January 29, 

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

10 20 C.F.R. § 10.606(b)(3); see L.D., supra note 6; see also L.G., supra note 6; C.N., supra note 6.
6

the April 13, 2017 employment incident as factual, processed the claim as a short-form closure, 

and had granted COP under OWCP File No. xxxxxx505. The Board finds that appellant’s 

statement is irrelevant to the underlying medical issue of whether she had established low back 

and lower abdominal injuries causally related to the accepted April 13, 2017 employment incident. 

The Board has held that the submission of evidence that does not address the particular issue 

involved does not constitute a basis for reopening a case.11 Thus, appellant is not entitled to a 

review based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12

Accordingly, the Board finds that appellant has not met any of the requirements under 20 

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

13

11 L.W., Docket No. 21-0942 (issued May 11, 2022); see F.H., Docket No. 20-0309 (issued January 26, 2021); T.T., 

Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. NixonSteward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224 (1979).

12 Supra note 6 at § 10.606(b)(3); id.

13 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
7

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 January 7, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 6, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board