United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Waycross, GA, Employer 

__________________________________________ 

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Docket No. 14-1213 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 30, 2014 appellant, through his attorney, filed a timely appeal of an April 4, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying 

further merit review. The most recent merit decision was the March 6, 2014 decision of the 

Board, which became final after 30 days of issuance and is not subject to further review. The 

Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3 and 501.6(d). 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case was previously on appeal before the Board. On February 12, 2010 appellant, 

then a 38-year-old sales and systems distributor, filed a claim for traumatic injury alleging that 

on February 7, 2010 he hit his head on equipment, causing head trauma. OWCP denied 

appellant’s claim on April 2, 2010 finding that he failed to submit medical evidence establishing 

a diagnosis as a result of the February 7, 2010 employment incident. Appellant requested a 

review of the written record by an OWCP hearing representative on April 27, 2010. The hearing 

representative affirmed OWCP’s decision on August 5, 2010. Appellant informed OWCP that 

on October 27, 2010 he also had a fall where his teeth were dislodged. He, through his attorney, 

requested a second oral hearing on October 29, 2010. Appellant testified at this oral hearing that 

he had been working outside in 100 degree weather and, as he was leaving work, walked past a 

concrete picnic table and fainted. He alleged that he hit a concrete door and that his supervisors 

found him lying in a pool of blood with his teeth knocked out. 

Appellant appealed to the Board and in a decision dated September 5, 20122 the Board 

noted that the medical evidence was not sufficient to establish an injury due to the February 2010 

fall. The Board noted that his submitted evidence from three physicians who provide three 

different medical explanations for his fall -- classical vasovagal syncope likely related to 

prolonged standing, unclear cause, but nonepileptic fall and that the fall was not related to 

standing in the performance of duty. The Board found that appellant had sustained an 

unexplained fall on February 7, 2010 and that he had failed to submit the necessary medical 

opinion evidence to establish a medical condition resulted from this fall. 

Appellant requested reconsideration on July 25, 2013 and alleged that he sustained dental 

injuries as a result of his February 7, 2010 fall. He submitted a report from Dr. Milton A. 

Peavey, a dentist, dated May 15, 2013 indicating that on August 3, 2010 the tooth root from 

number 9 was removed and appellant received a bridge from numbers 7 through 10. Dr. Peavey 

opined that the injuries to appellant’s teeth were due to his recent fall. OWCP denied 

modification of its prior decision on August 7, 2013. The Board reviewed this decision on 

March 6, 20143

 and found that appellant had not established an injury causally related to the 

February 7, 2010 fall or that he had struck a picnic table or sustained injuries to his mouth or 

teeth. The Board further found that Dr. Peavey’s report was not sufficiently factually detailed to 

establish that appellant’s dental injuries resulted from the February 7, 2010 employment incident. 

The facts and circumstances of the case as set out in the Board’s prior decisions are adopted 

herein by reference. 

Counsel requested reconsideration on March 19, 2014 and submitted a legal brief in 

support of the request. He argued that appellant was alleging an occupational disease claim 

caused by long periods of standing at work dehydration or high temperatures and resulting in 

vasovagal syncope. Counsel then argued that appellant had three consequential injuries resulting 

from his vasovagal syncope, a fall on October 28, 2009, a fall on February 7, 2010 and a fall on 

August 3, 2010. 

 2

 Docket No. 11-1826 (issued September 5, 2012). 

3

 Docket No. 13-2118 (Issued March 6, 2014). 
3

By decision dated April 4, 2014, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It stated that the brief was before the Board at the time of the 

March 6, 2014 decision and that if he felt that his claim was more properly adjudicated as an 

occupational disease claim, he should file the appropriate form. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4

 

Section 10.606(b) of the code of federal regulations provide that a claimant may obtain review of 

the merits of the claim by submitting in writing an application for reconsideration which sets 

forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific 

point of law; or advances a relevant legal argument not previously considered by OWCP; or 

includes relevant and pertinent new evidence not previously considered by OWCP.5 Section 

10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but 

does not meet at least one of these three requirements, OWCP will deny the application for 

review without reopening the case for a review on the merits.6

ANALYSIS 

Counsel attempted to submit new and relevant legal argument in support of his request 

for reconsideration of appellant’s traumatic injury claim. The Board finds that the arguments 

submitted are not relevant given the Board’s findings on prior appeals. Appellant filed a notice 

of traumatic injury alleging that he fell on February 7, 2010 and the record also contains factual 

and medical evidence of an additional fall in August 2010. The Board has reviewed all the 

medical evidence currently in the record in its prior decisions and specifically found that he had 

not met his burden of proof to establish vasovagal syncope due to prolonged standing due to the 

variety of explanations for his fall proposed by his physicians. Therefore, the argument that 

appellant has met his burden of proof to establish a claim for vasovagal syncope has already been 

addressed and resolved by the Board and is not a new legal argument. The matter is res judicata

and not subject to further review by the Board absent further review by OWCP.7

 

The current claim as adjudicated by OWCP and the Board is for a traumatic injury 

occurring on February 7, 2010. Appellant has not submitted any new legal arguments relevant to 

this claim. 

Appellant has not demonstrated that OWCP improperly applied or interpreted a point of 

law; he has not advanced a relevant legal argument not previously considered by OWCP; and has 

not presented any pertinent new and relevant medical evidence. Thus, he has not established that 

 4 See supra note 1. 

5

 20 C.F.R. § 10.606. 

6 Id. at § 10.608. 

7 See D.C., Docket No. 14-663 (issued June 26, 2014); Clinton E. Anthony, Jr., 49 ECAB 476 (1998). 
4

OWCP abused its discretionary authority in declining to reopen appellant’s case for further merit 

review. 

CONCLUSION 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

consideration of the merits on April 4, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the April 4, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 15, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board