United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.F., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, GREAT SMOKY 

MOUNTAINS NATIONAL PARK, 

Gatlinburg, TN, Employer

__________________________________________

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Docket No. 22-0420

Issued: July 19, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 19, 2022 appellant filed a timely appeal from a November 17, 2021 nonmerit 

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

elapsed from the last merit decision on this issue, dated June 15, 2021, 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 to review the merits of this case.

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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 5, 2021 appellant, then a 42-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on May 4, 2021 he sustained ringing in the ears and pain 

in the legs and feet as a result of sustaining an indirect lightning strike on a hiking trail while in 

the performance of duty. 

The employing establishment completed and signed an authorization for examination 

and/or treatment (Form CA-16) on May 4, 2021. In the attending physician’s report portion of the 

form, Part B of the Form CA-16, a physician with an illegible signature diagnosed “electrical 

injury.” The physician indicated that appellant was able to return to work on May 5, 2021 if his 

symptoms had resolved. 

In an emergency department report dated May 4, 2021, Dr. Benjamin Murphy, an 

emergency medicine specialist, diagnosed electrical injury.

OWCP received a letter dated May 7, 2021 from the employing establishment which 

advised that seven employees, including appellant, were in close vicinity of a lightning strike on 

May 4, 2021 and had sustained injuries. 

In a development letter dated May 13, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of additional medical evidence necessary, noting that 

electrical shock injury was not a firm diagnosis. Appellant was afforded 30 days to submit the 

necessary evidence. 

By decision dated June 15, 2021, OWCP denied appellant’s traumatic injury claim. It 

accepted that the alleged incident occurred as alleged, but found that he had not submitted 

sufficient medical evidence containing a medical diagnosis in connection with the claimed injury.

On August 17, 2021 appellant requested reconsideration of OWCP’s June 15, 2021 

decision.

With his request, appellant submitted an undated narrative statement, which described the 

May 4, 2021 incident. He stated that on the morning of May 4, 2021, while working alongside six 

co-workers, a cloud to ground lightning strike occurred. The strike hit approximately 15 feet from 

the nearest crew member and approximately 100 feet from the furthest crew member. The crew 

was evacuated to a parking area and was later assessed at a medical center. Appellant noted that 

it was necessary that he be been seen at the hospital emergency room to ensure that he had no 

further complications from the lightning strike. He related that the only diagnosis on his discharge 

instructions was “electrical injury in adult.”

Appellant resubmitted a copy of the May 4, 2021 Form CA-16, with the attending 

physicians report portion of the form included. 

By decision dated November 17, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
3

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 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. 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.4 If 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 properly denied appellant’s request for reconsideration of the 

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

Appellant’s August 17, 2021 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. Moreover, it did not advance 

a relevant legal argument not previously considered by OWCP. In support of his reconsideration 

request, appellant submitted an undated narrative statement that was received on August 17, 2021 

explaining the events of May 4, 2021 and his subsequent medical care. While appellant’s undated 

statement received on August 17, 2021 is new, the underlying issue in this case is medical in 

nature, as OWCP found that appellant had not submitted sufficient medical evidence containing a 

medical diagnosis in connection with the claimed injury. As such, medical evidence from a 

2

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

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).

4

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.

5

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

6

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).
4

qualified physician is required.

7

 Thus, appellant’s reconsideration request did not raise a new and

relevant legal argument not previously considered. 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).

On reconsideration appellant submitted a copy of the May 4, 2021 Form CA-16 and 

accompanying attending physician’s report, previously of record. However, medical evidence that 

either duplicates or is substantially similar to evidence previously of record does not constitute a 

basis for reopening a case.8 Therefore, appellant is also not entitled to further review of the merits 

of his claim based on the third above-noted 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.

9

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).

7

See J.B., Docket No. 18-1531 (issued April11, 2019); D.K., 59 ECAB 141 (2007).

8

See B.S., Docket No. 20-0927 (issued January 29, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020);

Eugene F. Butler, 36 ECAB 393, 398 (1984).

9 The Board notes that the employing establishment issued a Form CA-16, dated May4, 2021. A completed Form

CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or physician, 

when properly executed. The form creates a contractual obligation, which does not involve the employee directly, to 

pay for the cost of the examination or treatment regardless of the action taken on the claim. See20 C.F.R. § 10.300(c);

V.S., Docket No. 20-1034 (issued November 25, 2020); J.G.,Docket No. 17-1062 (issued February 13, 2018);

Tracy P. Spillane, 54 ECAB 608 (2003).
5

ORDER

IT IS HEREBY ORDERED THAT the November 17, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 19, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board