United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.N., Appellant

and

DEPARTMENT OF DEFENSE, GLOBAL 

STRIKE COMMAND, MINOT AIR FORCE 

BASE, ND, Employer

__________________________________________

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Docket No. 22-0243

Issued: June 28, 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 December 7, 2021 appellant filed a timely appeal from a June 10, 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 December 15, 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 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 February 4, 2020 appellant, then a 54-year-old engineer, filed a traumatic injury claim 

(Form CA-1) alleging that on December 16, 2019 he sustained hip and neck soreness when he 

slipped and fell on a patch of ice while in the performance of duty.

In a February 11, 2020 development letter, OWCP informed appellant of the deficiencies 

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

questionnaire for his completion. OWCP afforded appellant 30 days to respond.

In a February19, 2020 response to OWCP’s development questionnaire, appellant 

explained how his slip and fall occurred.

By decision dated March 13, 2020, OWCP denied appellant’s claim. It found that he had 

not submitted sufficient medical evidence to establish a firm diagnosis in connection with the 

accepted incident of December 16, 2019.

Appellant subsequently submitted an emergency department report dated December 17, 

2019 signed by a certified nurse practitioner. His differential diagnoses were listed as fall, 

contusion, sprain, strain, and closed fracture. The emergency room record also indicated that 

appellant was provided educational materials for a hip contusion. The emergency department 

report also included the results of diagnostic testing obtained on that date and conducted by

Dr. James Miller, a Board-certified diagnostic radiologist, who stated impressions of no acute bone 

findings, sclerotic focus/lesion within the proximal tibia, chronic and of unclear etiology, inability 

to exclude a tiny knee joint effusion, and moderate degenerative changes in the right hip.

On December 1, 2020 appellant requested reconsideration.

By decision dated December 15, 2020, OWCP reviewed the merits of appellant’s claim, 

but denied modification. 

On May 27, 2021 appellant requested reconsideration. He submitted a copy of the 

December 17, 2019 emergency department report, which had been updated to include an 

addendum signature by Dr. Jeffrey Sather, a Board-certified emergency medicine physician, dated 

March 22, 2021. 

By decision dated June 10, 2021, OWCP denied appellant’s request for reconsideration.

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.2

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

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 improperly denied appellant’s request for reconsideration of 

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

In support of his request for reconsideration, appellant submitted a copy of the 

December 17, 2019 emergency department report, which had been updated to include an 

addendum signature by Dr. Sather dated March 22, 2021. As this report addresses the underlying 

issue of whether a medical condition had been diagnosed in connection with the accepted 

employment incident, the report constitutes relevant and pertinent new evidence that was not 

previously considered by OWCP. 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 June 10, 2021 decision and remand the 

case for an appropriate merit decision on appellant’s claim.8

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).

7

20 C.F.R. § 10.606(b)(3);see also S.C., 20-1661 (issued May6, 2022); J.T., Docket No. 20-1301 (issued July 28, 

2021); M.J.,Docket No. 20-1067 (issued December 23, 2020).

8 F.K., Docket No. 21-0998 (issued December 29, 2021).
4

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2021 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: June 28, 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