United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION 

HEARTLAND-WEST, Kansas City, MO, 

Employer 

__________________________________________ 

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Docket No. 15-77 

Issued: April 6, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through counsel, filed a timely appeal from a 

September 17, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her request for reconsideration. Because more than one year elapsed between 

the last merit decision dated April 3, 2014 to the filing of this appeal, and 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 appellant’s case.2

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that, following the September 17, 2014 nonmerit decision, OWCP received additional 

evidence. However, the Board may only review evidence that was in the record at the time OWCP issued its final 

decision. See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 

(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 

373 (2003). 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

On appeal counsel contends that OWCP’s decision was contrary to fact and law. 

FACTUAL HISTORY 

On March 25, 2013 appellant, then a 54-year-old health technician, filed a traumatic 

injury claim alleging that on that date she sustained back and bilateral knee pain when she 

slipped on icy pavement. 

In a May 3, 2013 report, Dr. Mauricio Garcia, a treating physician, diagnosed cervical 

radiculopathy, unspecified joint shoulder region disorders, pain in neck, and loose body in 

shoulder joint region. Appellant was seen for complaints of left shoulder and neck pain. 

Dr. Garcia provided physical and neurologic findings and noted aggravating factors of shoulder 

use and all overhead activities. 

On May 17, 2013 Dr. Garcia reported seeing appellant for neck and left shoulder pain 

complaints. He provided physical and neurologic examination findings. Dr. Garcia noted that 

her pain had not changed since appellant slipped and fell on ice on March 25, 2013. Diagnoses 

included left cervical radiculopathy and shoulder joint region pain. 

In a letter dated June 14, 2013, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim. It advised her as to the medical and factual evidence 

required to support her claim and gave her 30 days to provide this evidence. 

On June 7, 2013 appellant was seen by Dr. Garcia for back pain complaints and reported 

that on March 25, 2013 appellant slipped and fell on ice while walking to work. The status of 

appellant’s pain in her shoulder and back was unchanged from the last visit. Dr. Garcia provided 

physical and neurologic examination findings. Diagnoses included left unspecified joint 

shoulder region disorder, neck pain, left loose body in the shoulder joint region, left low back 

pain, and left sciatica. He stated that appellant’s cervical pain with radicular symptoms occurred 

following the March 2013 slip and fall. 

Dr. Garcia, in a June 24, 2014 report, stated appellant’s chief complaints were neck, left 

shoulder, and back pain and that the pain was more severe. He related that the episodes of pain 

followed the March 25, 2013 incident when appellant slipped and fell on ice while going to 

work. Physical examination findings were provided. Under impression, Dr. Garcia reported left 

shoulder weakness and pain and cervical pain with radicular symptoms status post the 

March 2013 fall. 

By decision dated July 16, 2013, OWCP denied her claim. It found that the evidence was 

insufficient to establish that there was a diagnosed condition causally related to the accepted 

March 25, 2013 employment incident. 
3

In a July 5, 2013 report, Dr. Robert Trout, an examining Board-certified physiatrist, 

diagnosed mild left carpal tunnel syndrome and left low back pain. He provided physical 

examination findings and the results from the electromyograph test performed. 

A July 5, 2013 cervical spine magnetic resonance imaging (MRI) scan revealed no acute 

osseous abnormalities, mild C4-5 and C5-6 disc bulge, mild C2-3 central canal stenosis due to 

disc bulging, and mild-to-moderate C3-4 right lateral spinal stenosis and forminal stenosis due to 

disc bulging and posterolateral right spur formation. The left shoulder x-ray interpretation 

showed intact rotator cuff, moderate diffuse rotator cuff tendinopathy, and moderate arthrosis of 

the acromioclavicular joint. 

In a July 19, 2013 report, Dr. Brian N. Jones, an examining physician, stated that 

appellant was seen for complaints of low back, left leg, and left shoulder pain. He stated that her 

episodes of pain followed the March 25, 2013 incident when she slipped and fell on ice while 

going to work. Dr. Jones provided examination findings and diagnosed sciatica, left low back 

pain, left shoulder joint region pain, herniated lumbar disc, and left cervical radiculopathy. 

On July 29, 2013 appellant requested a telephone hearing before an OWCP hearing 

representative, which was held on January 16, 2014. 

In reports dated September 4 and November 21, 2013, Dr. Jones diagnosed sciatica, left 

low back pain, left shoulder joint region pain, herniated lumbar disc, and left cervical 

radiculopathy. He reported that the pain occurred after appellant slipped and fell on March 25, 

2013 and provided physical examination findings. 

In reports dated January 23 and February 27, 2014, Dr. Daniel J. Coy, an examining 

physician, diagnosed cervicalgia, cervical herniated disc, left cervical radiculopathy, left low 

back pain, and lumbar herniated disc. He reported that the pain occurred following a March 25, 

2013 incident when appellant slipped and fell on ice while going to work. Dr. Coy provided 

physical examination findings. 

By decision dated April 3, 2014, OWCP hearing representative affirmed the July 16, 

2013 denial of appellant’s claim. 

On April 4, 2014 OWCP received medical evidence as set forth below. 

In a March 27, 2014 report, Dr. Coy diagnosed cervicalgia, cervical herniated disc, left 

cervical radiculopathy, left low back pain, and lumbar herniated disc and provided physical 

examination findings. He reported that the pain occurred following a March 25, 2013 incident 

when appellant slipped and fell on ice while going to work. 

A March 27, 2014 x-ray interpretation of the cervical spine revealed no subluxation or 

fracture and mild straightening of normal cervical lordosis. 

In a letter dated June 12, 2014, appellant’s counsel requested reconsideration and 

resubmitted evidence previously considered by OWCP which included reports dated January 23 

and February 27, 2014 from Dr. Coy, a September 4, 2013 report by Dr. Jones, and a July 5, 

2013 MRI scan. Counsel also submitted additional evidence. 
4

In an April 23, 2013 report, Dr. William Thomas, a chiropractor, diagnosed lumbago, 

disc degeneration, acquired postural kyphosis, and nonallopathic lumbar region lesions. He 

related that appellant was seen following a March 25, 2013 work incident. Appellant related 

having neck, left shoulder, and back pain since the March 25, 2013 incident. Dr. Thomas 

provided physical findings and noted cervical, lumbar, and thoracic subluxations. He stated that 

appellant had reduced cervical, thoracic, and lumbar range of motion with pain. Under 

treatment, Dr. Thomas noted two to three views of lumbosacral and cervical radiologic 

examinations. 

A June 9, 2014 x-ray interpretation showed a C3-4 posterior disc protrusion and C5-6 

incomplete bridging anterior osteophyte or anterior disc calcification. Under indication the 

report noted cervicalgia and herniated cervical disc. 

A June 9, 2014 computerized tomography (CT) scan reported right mild central neural 

forminal narrowing and C3-4 right posterior lateral disc protrusion “with asymetric narrowing of 

the right lateral recess where there is a mass effect upon the ventral nerve root.” 

By decision dated September 17, 2014, OWCP denied reconsideration. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

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

considered by OWCP.4

 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.6

 

ANALYSIS 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In her June 12, 2014 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. She did not identify a specific point of 

 3

 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application. 

4

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

5 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

6 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
5

law or show that it was erroneously applied or interpreted. Appellant did not advance a new and 

relevant legal argument not previously considered by OWCP. 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence. In her request, appellant failed to submit any pertinent new and relevant evidence or 

argument in this case. She resubmitted the January 23 and February 27, 2014 reports by 

Dr. Coy, a September 4, 2013 report by Dr. Jones, and a July 5, 2013 MRI scan. OWCP, 

however, had previously considered this evidence in its April 3, 2014 hearing representative’s 

decision. Evidence which repeats or duplicates evidence already in the case record has no 

evidentiary value and does not constitute a basis for reopening a case.7

 

The Board finds that the submission of the reports from Drs. Coy and Thomas and the 

diagnostic evidence did not require reopening appellant’s case for merit review. The reports are 

repetitive of their prior reports and offer no opinion as to the cause of her conditions. Similarly, 

Dr. Thomas offered no opinion as to the cause of appellant’s diagnosed condition. OWCP 

denied her claim finding that none of the medical evidence contained any rationale explaining 

how the diagnosed conditions were causally related to the accepted March 25, 2013 incident. 

The reports from Dr. Coy, Dr. Thomas, a June 9, 2014 CT scan, and June 9, 2014 x-ray 

interpretation are not relevant or pertinent to the underlying issue in this case, i.e. causal 

relationship, as neither provides any explanation as to how her diagnosed conditions had been 

caused or aggravated by the March 25, 2013 incident and, thus, are not sufficient to require 

OWCP to reopen her claim for consideration of the merits.8

The Board accordingly finds that appellant did not meet 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. 

On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds his arguments are not substantiated.

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

 7 See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005). 

8 See James W. Scott, 55 ECAB 606 (2004). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 17, 2014 is affirmed. 

Issued: April 6, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board