United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF THE AIR FORCE, 99TH 

MEDICAL GROUP, NELLIS AIR FORCE 

BASE, NV, Employer

__________________________________________

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Docket No. 21-1165

Issued: March 1, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit 

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

elapsed from OWCP’s last merit decision, dated May 27, 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 over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

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

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc 

disease due to constant sitting, staring at a computer screen, and inputting data while in the 

performance of duty. 

In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s 

complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical 

examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez 

assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and 

venous insufficiency. 

In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon, 

recounted that appellant had worked for the employing establishment for a number of years and 

complained of chronic pain issues in her neck and back. On physical examination, he noted 

tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right 

shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been 

exacerbated through her primary care. 

Appellant resigned from the employing establishment, effective March 13, 2015. 

In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim 

alleging that she had not submitted medical evidence of the alleged injury. It also noted that she 

had previous fall injuries in 2013 and 2014. 

In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was 

diagnosed with degenerative disc disease before she began working for the employing 

establishment in 2012. She reported that she was exposed to constant sitting, staring at screens, 

and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and 

back pain. 

By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,

finding that she had not established that her diagnosed thoracic and lumbar spine conditions were 

causally related to the accepted factors of her federal employment. 

3 Docket No. 18-1280 (issued March12, 2019).
3

On June 29, 2015 appellant requested reconsideration. 

In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided 

examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease, 

osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder 

supraspinatus tendon tear. 

In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted 

appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear 

and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”

indicating that the diagnosed conditions were caused or aggravated by appellant’s employment

and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders, 

and wrist. 

By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015 

decision. 

On November 20, 2015 appellant requested reconsideration. 

Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M. 

Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of 

right shoulder pain after a slip and fall injury approximately seven months prior. On initial 

examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no 

pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and 

bilateral shoulder joint pain. 

By decision dated February 9, 2016, OWCP denied modification of the September 25, 

2015 decision. 

On March 21, 2016 appellant requested reconsideration. 

In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level 

of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate 

degenerative joint disease that was previously not problematic to experience a major exacerbation 

of her condition from a sedentary job and a hard fall onto cement. 

By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016 

decision. 

On September 7, 2016 appellant requested reconsideration. She contended that she had 

submitted all required medical documents from her physicians. Appellant asserted that her federal 

employment temporarily aggravated her preexisting degenerative joint condition and that the 

October 2014 fall made the aggravation permanent. 

In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon, 

indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs. 

He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed 

lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis. 
4

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and 

provided physical examination findings. He diagnosed right hip joint pain, lumbosacral 

degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar 

spondylolisthesis, and lumbago. 

In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain 

medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in 

the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar 

radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued 

to treat appellant and provided medical reports dated May 13 and June 23, 2016.

By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016 

decision. 

Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed 

OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish 

causal relationship between her diagnosed medical conditions and accepted factors of her federal

employment. 

On October 7, 2019 appellant requested reconsideration. She submitted various articles 

about injuries that result from sitting for long periods of time. 

By decision dated May 27, 2020, OWCP denied modification. 

On January 22, 2021 appellant requested reconsideration. She indicated that she continued 

to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation. 

Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her 

condition was not problematic until she started to work for the employing establishment. She 

asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and 

her fall in October 2014 permanently aggravated her condition. 

By decision dated February 11, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of her 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 or her own motion or on application.4

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 

4

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).
5

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

OWCP.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.8

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).

With her January 22, 2021 request for reconsideration, appellant submitted a statement 

alleging that she did not experience problems with her degenerative joint disease until she began 

to work for the employing establishment. She asserted that her sedentary job duties temporarily 

aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her 

condition. Appellant’s reconsideration request does not advance a new legal argument not 

previously considered nor does it show that OWCP erroneously applied or interpreted a specific 

point of law. Her argument is substantially similar to that which was previously considered and 

discussed in OWCP’s April 20, 2018 decision.9 Consequently, appellant is not entitled to further 

review of the merits of her claim based on either the first or second above-noted requirements 

under 20 C.F.R. § 10.606(b)(3).10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795 

(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

6

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.

7

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

8

Id. at § 10.608(b); E.R.,Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued 

October 9, 2020); EugeneF. Butler, 36 ECAB 393, 398 (1984).

10 20 C.F.R. § 10.606(b)(3)(i) and(ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 

18-1697 (issued March 21, 2019); AlanG. Williams, 52 ECAB 180 (2000).
6

Furthermore, the Board finds that appellant has not provided any relevant and pertinent 

new evidence not previously considered.11 Thus, appellant is also not entitled to a review of the 

merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12

As appellant has not met any of the regulatory requirements under 20 C.F.R. 

§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13

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 February 11, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 1, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

11 T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12 20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535 

(issued July 25, 2019).

13 S.M., Docket No. 21-0392 (issued August12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R., 

Docket No. 16-1416 (issued April10, 2017); M.E., 58 ECAB 694 (2007); SusanA. Filkins, 57 ECAB 630 (2006) 

(when a request for reconsideration does not meet at least one of the three requirements enumerated under section 

10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).