United States Department of Labor

Employees’ Compensation Appeals Board

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J.T., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Yuba, CA, Employer

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Docket No. 20-1301

Issued: July 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 June 16, 2020 appellant filed a timely appeal from a March 2, 2020 nonmerit decision 

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

OWCP’s last merit decision, dated October 22, 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On February 27, 2018 appellant, then a 79-year-old claims assistant, filed an occupational 

disease claim (Form CA-2) alleging that she developed a pressure ulcer due to factors of her federal 

 

1 5 U.S.C. § 8101 et seq.
2

employment, including sitting, typing, and answering telephones while sitting in a wheelchair. She 

noted that she first became aware of her condition on September 25, 2017 and first realized its 

relation to her federal employment on October 1, 2017. Appellant stopped work on 

September 25, 2017.

In a March 14, 2018 development letter, OWCP informed appellant of the deficiencies of 

her claim. It advised her of the type of factual and medical evidence needed to establish her claim 

and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the 

necessary evidence. 

In a March 17, 2018 response to OWCP’s development questionnaire, appellant noted that 

she had been a paraplegic since a 1983 car accident and had been working while sitting in a power 

wheelchair from 2001 through 2015 without any problems. She indicated that she got a new power 

wheelchair in 2015, which was not properly designed for long-term sitting. Appellant asserted 

that she had no other chair to work from and continued to work in an inadequate power wheelchair 

for approximately 27 months, 8 hours a day for 5 days per week. She noted that she began 

experiencing discomfort and pain in her hips and legs despite her best attempt to shift weight 

periodically to cope with prolonged sitting. Appellant alleged that she eventually developed “a 

hard knot or mass under [her] skin on the upper right side of [her] back close to [her] spine.” She 

noted that she was diagnosed with a pressure ulcer by her physician and was referred to a plastic 

surgeon. Appellant underwent surgery on December 4, 2017 “to stop the ulcer from going into 

[her] bloodstream.” She contended that working from a not well-designed wheelchair caused her 

ulcer on her right low back.

Appellant also submitted a February 13, 2018 Certification of Health Care Provider for 

Employee’s Serious Heath Condition form from Dr. Kelly Gallego, Board-certified in plastic 

surgery, who diagnosed an open wound pressure ulcer and found that appellant could not sit for 

prolonged periods.

By decision dated June 14, 2018, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish that her diagnosed condition was causally related 

to the accepted factors of her federal employment.

In medical reports dated October 11, 17, and 30, 2017, Dr. Winston J. Serrano, Boardcertified in family practice, indicated that appellant was wheelchair-dependent and paraplegic. He 

provided multiple diagnoses, including scoliosis of the lumbar spine, chronic acute low back pain 

with left-sided sciatica, and a decubitus ulcer of the left buttock. 

October 17, 2017 x-rays of the left hip and pelvis revealed probable bone island in the 

superior left acetabular region and levoscoliosis of the lower lumbar spine with moderate 

degenerative change. An x-ray of the lumbar spine of even date demonstrated 32 degrees 

levoscoliosis of the lumbar spine, moderate disc space narrowing and degenerative change at 

L3-L4 and L4-L5 levels and in the imaged lower thoracic spine, and bony fusion through the L5-S1 

disc space.

In a series of medical reports dated November 16, 2017 through May 7, 2018, Dr. Gallego

indicated that appellant was referred to him by Dr. Serrano regarding a pressure ulcer on her right 
3

buttock. He also noted that she underwent a surgical procedure on December 4, 2017 and indicated 

that she was recovering well with no evidence of ongoing infection or necrosis. Dr. Gallego 

reported that appellant still experienced some issues and remained off work. 

In a July 2, 2018 letter, Dr. Serrano noted that appellant had been dealing with a sacral 

decubitus pressure ulcer since November 2017. He opined that her ulcer was aggravated by 

prolonged sitting and that she needed a special wheelchair that allowed her to change position 

every one to two hours. 

In a form dated and postmarked July 5, 2018, appellant requested review of the written 

record by an OWCP hearing representative. 

By decision dated October 22, 2018, OWCP’s hearing representative affirmed the June 14, 

2018 decision.

On December 5, 2018 appellant requested reconsideration and submitted additional 

evidence. 

In a November 2, 2018 medical report, Dr. Serrano diagnosed a pressure ulcer of the right 

buttock. He again noted that appellant had been wheelchair-dependent since her car accident in 

1983. Dr. Serrano explained that appellant needed to find a comfortable position when sitting 

because of the weakness of her spine that prevented her from shifting easily. He indicated that her 

new power wheelchair made it difficult for her to recline and change her position. Dr. Serrano 

reported that appellant had been leaning more to her right side, which led to a sacral pressure ulcer 

in September 2017. He opined that because appellant’s work required her to sit for eight hours 

each day, and as she was unable to shift her position, it led to her diagnosed pressure ulcer. 

Dr. Serrano noted that appellant’s ulcer was now completely healed since her surgery, but 

concluded that it was work related given her job duties that prevented her from shifting.

By decision dated March 2, 2020, OWCP denied merit review of appellant’s 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.2

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 

 

2

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.3

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

OWCP’s decision for which review is sought.4If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.5 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.6

ANALYSIS

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

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

The underlying issue on reconsideration is the medical question of whether appellant’s 

diagnosed pressure ulcer was causally related to the accepted factors of her federal employment. 

Along with the December 5, 2018 reconsideration request, appellant submitted Dr. Serrano’s 

November 2, 2018 medical report in which he specifically opined that because appellant’s work 

required her to sit for eight hours each day and as she was unable to shift her position, it led to her 

diagnosed pressure ulcer. As his report addressed the underlying issue of causal relationship 

between appellant’s diagnosed medical condition and the accepted factors of her federal 

employment, the report constitutes relevant and pertinent new evidence that is not substantially 

similar to evidence previously considered. Therefore, the Board finds that the submission of this 

evidence requires reopening of appellant’s claim for merit review pursuant to the third requirement 

of 20 C.F.R. § 10.606(b)(3).7

Consequently, the Board will set aside OWCP’s March 2, 2020 decision and remand the 

case for an appropriate merit decision on appellant’s claim.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

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

 

3 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N., 

Docket No. 08-1569 (issued December 9, 2008).

4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

7 Supra note 3; see also M.J., Docket No. 20-1067 (issued December 23, 2020).
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ORDER

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

of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: July 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