United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Boston, MA, 

Employer

__________________________________________

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Docket No. 21-0817

Issued: July 26, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 4, 2021 appellant filed a timely appeal from an April 5, 2021 merit decision and 

an April 27, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of the case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notesthat, following the April 27, 2021 decision, OWCP received additional evidence. However, 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

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish eligibility for 

continuation of pay (COP) by April 5, 2021; and (2) whether OWCP properly denied appellant’s 

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

FACTUAL HISTORY

On March 1, 2021 appellant, then a 27-year-old compliance inspection and support 

employee, filed a traumatic injury claim (Form CA-1) alleging that on that day he injured his low 

back when he sat down, his chair collapsed, and he fell while in the performance of duty. He

indicated by checkmark that he chose sick and/or annual leave, if needed. Appellant did not claim 

COP. On the reverse side of the claim form, appellant’s supervisor acknowledged that he was 

injured in the performance of duty. Appellant stopped work on March 1, 2021.

In support of his claim, appellant submitted a report dated March 9, 2021 from Teryl D. 

Pett, a physician assistant, listing appellant’s diagnoses as acute bilateral thoracic back pain and 

bilateral low back pain without sciatica. Mr. Pett submitted a letter dated March 9, 2021 which 

stated that appellant should remain off of work until further notice due to an acute back injury. 

Appellant submitted a medical report dated March 11, 2021 from Dr. Jeremy Shore, a 

Board-certified orthopedic surgeon. Dr. Shore related that appellant suffered from lower back pain 

after he fell out of a chair on March 1, 2020 at work. He diagnosed low back strain. In a report 

dated March 25, 2021, Dr. Shore related that appellant felt that his pain was not improving.

By decision dated April 5, 2021, OWCP accepted appellant’s claim for strain of muscle, 

fascia and tendon of lower back. By separate decision of even date, it denied appellant’s claim for 

COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of 

the accepted March 1, 2021 employment injury and that the employing establishment indicated no 

lost time or medical expenses incurred or expected. OWCP noted that the denial of COP did not 

preclude him from filing a claim for disability for the effects of the accepted employment injury.

On April 15, 2021 appellant requested reconsideration of OWCP’s April 5, 2021 decision. 

He submitted an additional April 15, 2021 progress report from Dr. Shore, noting that appellant 

was seen for a follow-up appointment and would continue with physical therapy. OWCP also 

received April 16, 2021 referral orders for physical therapy. 

On April 16, 2021 appellant submitted a claim for compensation (Form CA-7) for leave 

buy back during the dates March 28 through April 10, 2021. 

By decision dated April 27, 2021, OWCP summarily denied appellant’s request for 

reconsideration. It related that appellant had neither raised substantive legal questions nor 

provided new and relevant evidence warranting merit review of the prior decision.
3

LEGAL PRECEDENT -- ISSUE 1

Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has 

filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior 

on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of 

this title.3 This latter section provides that written notice of injury shall be given within 30 days.

4

 

The context of section 8122 makes clear that this means within 30 days of the injury.5

OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee 

must: (1) have a traumatic injury which is job related and the cause of the disability and/or the 

cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1 

within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic 

injury within 45 days of the injury.6 

OWCP’s regulations provide that an employee may elect COP by checking the appropriate 

box on the front of the Form CA-1.7 

ANALYSIS -- ISSUE 1

The Board finds that appellant did not meet his burden of proof to establish eligibility for 

COP by April 5, 2021. 

The record reflects that appellant filed written notice of his traumatic injury on a Form 

CA-1 on March 1, 2021. As his accepted employment injury occurred on March 1, 2021, appellant 

filed the Form CA-1 within 30 days of the date of the injury. However, appellant indicated on the

Form CA-1 that he chose sick and/or annual leave, if needed, he did not indicate that he was 

electing COP. As previously noted, OWCP’s regulations provide that an employee may elect COP 

by checking the appropriate box on the front of the Form CA-1.8 

OWCP’s procedures further provide that an employee may make a request to change sick 

or annual leave to COP no later than one year from the date the leave was used or the date the 

3

Supra note 1 at § 8118(a).

4

Id. at § 8122(a)(2).

5 E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019); 

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985). 

6

20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No. 

09-1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); WilliamE. Ostertag, 33 ECAB 

1925(1982).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Claims for Compensation, 

Chapter 2.0807.13a.(June 2012) (noting that if there is no election between COP and leave it should be construed as 

election for COP). 

8

Id. 
4

claim was approved, whichever is later.9 Upon receipt of a timely request, the sick or annual leave 

will be converted and the leave restored to the employee.10 However, as of April 5, 2021 appellant 

had not made a request to change sick and /or annual leave to COP. The Board therefore finds that 

appellant had not established his eligibility for COP by April 5, 2021, the date OWCP denied his 

request for COP.

11

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2 

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. 12

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 

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

OWCP.13

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

OWCP’s decision for which review is sought.14 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.15 If the request is timely, but fails to meet at least one of the 

9

Id. at 2.0807.13e.

10 Id.

11 Id.

12 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-

1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

13 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).

14 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.

15 Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).
5

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.16

ANALYSIS -- ISSUE 2 

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 his timely request for reconsideration appellant neither alleged nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Moreover, appellant has not 

advanced a relevant legal argument not previously considered. Consequently, appellant was not 

entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under 20 C.F.R. § 10.606(b)(3).17

The underlying issue in this case is whether appellant timely elected to receive COP. The 

record reflects that when appellant filed written notice of his traumatic injury on Form CA-1 on 

March 1, 2021, he indicated that he chose sick and/or annual leave. Following the denial of 

appellant’s request for COP, on April 16, 2021 appellant filed a Form CA-7 claiming leave buy 

back for the period March 28 through April 10, 2021.18

Section 8124(a) of FECA (5 U.S.C. § 8124(a)) provides that OWCP shall determine and 

make findings of fact and make an award for or against payment of compensation. Its regulations 

at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of 

fact and a statement of reasons. As well, OWCP’s procedures provide that the reasoning behind 

OWCP’s decision should be clear enough for the reader to understand the precise defect of the 

claim and the kind of evidence which would overcome it.19

In its April 27, 2021 decision, OWCP did not discharge its responsibility to set forth 

findings of fact and a clear statement of reasons explaining the disposition so that appellant could 

understand the basis for the decision, i.e., why the evidence submitted on reconsideration was 

insufficient to meet any of the requirements of 20 C.F.R. § 10.606(b)(3), warranting further merit 

review. OWCP did not address the underlying issue in this case, whether appellant had timely 

elected to receive COP. This case must therefore be remanded to OWCP for an appropriate 

decision on appellant’s reconsideration request that describes the evidence submitted on 

 

16 Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued 

April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

 

17 A.G., id.; C.B., Docket No. 18-1108 (issued January 22, 2019).

18 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Claims for 

Compensation, 2.0807.13e (June2012).

19 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances, Chapter 2.1400.5 (February 2013).
6

reconsideration and provides detailed reasons for accepting or rejecting the reconsideration 

request, pursuant to the standards set forth in 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126.20

The Board will therefore set aside April 27, 2021 decision and remand the case for findings 

of fact and a statement of reasons, to be followed by an appropriate decision on appellant’s 

reconsideration request. 

CONCLUSION

The Board finds that appellant had not met his burden of proof to establish eligibility for 

continuation of pay by April 5, 2021. The Board further 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 April 5, 2021 decision is affirmed. The April 27, 

2021 decision of the Office of Workers’ Compensation Programs is set aside and this case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: July 26, 2022

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

20 See R.T., Docket No. 19-0604 (issued September 13, 2019);T.M., Docket No. 17-1609 (issued December 4, 

2017); J.J.,Docket No. 11-1958 (issued June27, 2012).