United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA

MEDICAL CENTER, Syracuse, NY, Employer

__________________________________________

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Docket No. 21-1142

Issued: March 23, 2022

Appearances: Case Submitted on the Record

Christina Faliero, Esq., for the appellant1

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 July 22, 2021 appellant filed a timely appeal from a May 25, 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 8, 2020, to the filing of this appeal, pursuant to the

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board

lacks jurisdiction over the merits of this case.

3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May25, 2021 decision, OWCP received additional evidence. 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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell 

on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with 

his right leg slid backwards behind him and felt immediate discomfort in the area of the right 

posterior hip. Appellant did not stop work.

In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified 

orthopedic surgeon, indicated that appellant related complaints of right hip pain, which he 

attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted 

that he experienced immediate pain in the posterior right hip and, on physical examination, he 

documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with 

hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and 

femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of 

potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance 

imaging (MRI) scan of the right hip.

A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild 

osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common 

hamstring origin. 

In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results 

and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal 

hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the 

injury. Dr. Clarke recommended physical therapy and medication.

In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence necessary, including a

narrative medical report from his treating physician containing a detailed description of findings 

and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his

medical conditions. OWCP afforded appellant 30 days to submit the requested information.

Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a 

physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic 

exercises and modalities. Additional notes dated October 3 through November 5, 2019

documented physical therapy treatments for the right hip.

In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and 

hamstring tendinosis. He performed a cortisone and lidocaine injection. 

In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke

diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis, 
3

and right hip pain. He answered in the negative as to whether appellant had a history of a 

preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were 

caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.

By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim, 

finding that he had not submitted medical evidence establishing a causal relationship between his 

diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it

found that he had not met the requirements to establish an injury or medical condition causally 

related to the accepted employment incident.

OWCP continued to receive evidence including physical therapy notes dated November 8 

through 29, 2019.

In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced 

significant relief of his right hip pain following the cortisone injection and opined that his

complaints and examination findings were related to the May 17, 2019 employment incident.

In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full 

duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and 

ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring 

during his fall “could clearly have caused this problem” and “should be related to” his claim. 

Dr. Clarke injected the area with a steroid.

On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019 

decision.

By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding 

that appellant had not provided rationalized medical opinion evidence supporting causal 

relationship between his accepted employment incident and his diagnosed medical conditions.

On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020 

decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained 

thatDr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports 

were not speculative.

By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of 

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

neither raised substantial legal questions, nor included new or relevant evidence. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

4

5 U.S.C. § 8128(a).
4

limitations in exercising its authority.5 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.6

A timely request for reconsideration, including all supporting documents, must set forth 

arguments, and contain evidence that either: (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.7 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.8

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).

In support of his requestfor reconsideration, appellant, through counsel, argued that OWCP 

erred in finding that his claim required a fully rationalized medical opinion in order to establish a 

causal relationship between his diagnosed medical conditions and the accepted May 17, 2019 

employment incident. The Board finds, however, that appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal 

argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the 

merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3).9

Appellant also did not submit any new medical evidence. The underlying issue in this case 

is causal relationship, which is medical in nature, and he did not submit any pertinent new and 

relevant medical evidence not previously considered by OWCP. Therefore, appellant is not 

entitled to further review of the merits of his claim based on the third requirement under section 

10.606(b)(3).10

5

20 C.F.R. § 10.607. 

6

Id. at § 10.607(a). 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.

7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued 

February20, 2020).

8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020);M.S., Docket No. 18-1041 (issued 

October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).

10 See 20 C.F.R. § 10.606(b)(3)(iii).
5

The Board, therefore,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.

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).

ORDER

IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 23, 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