United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1587 

Issued: October 24, 2014 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 1, 2014 appellant, through counsel, timely appealed the January 6, 2014 

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

reconsideration.1

 The latest merit decision was issued January 23, 2013, which is more than 17 

months prior to the filing of the instant appeal. Pursuant to the Federal Employees’ 

Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to 

review the merits of this case. 

 1

 Under the Board’s Rules of Procedure, if the date of delivery of the notice of appeal (in this case July 8, 2014) 

would result in loss of appeal rights with respect to the 180-day time limitation for filing an appeal, the appeal will 

be considered to be filed as of the date of postmark. 20 C.F.R. § 501.3(e) and (f). In this case, the record reflects 

that the appeal was postmarked July 1, 2014, which is within 180 days of January 6, 2014. 

2

 5 U.S.C. §§ 8101-8193 (2006). 
2

ISSUE 

The issue is whether OWCP properly declined to reopen appellant’s case for merit review 

under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

Appellant, a 42-year-old licensed practical nurse (LPN), filed a claim (Form CA-1) for a 

left ankle injury that allegedly occurred on April 26, 2011. She reported having been injured by 

a resident while tending to his care. Appellant later clarified that the injury was to her right 

ankle. The medical evidence initially submitted did not include a specific injury-related 

diagnosis other than ankle/foot joint pain (ICD-9 719.47). OWCP afforded appellant an 

opportunity to supplement the record, but she did not timely comply with the May 25, 2011 

request for additional medical evidence. Consequently, it denied his traumatic injury claim by 

decision dated July 1, 2011. 

OWCP subsequently received medical evidence indicating that appellant was treated in 

the employing establishment’s emergency department on April 26, 2011 for a bruised right 

ankle. It also received an April 26, 2011 employing establishment incident report which noted, 

inter alia, that an 81-year-old veteran-patient became agitated and “began hitting nurses, 

scratching, kicking and biting.” The incident report identified appellant as one of the LPNs 

involved. 

A May 4, 2011 right ankle magnetic resonance imaging (MRI) scan revealed what 

appeared to be a slight degree of synovitis involving the tibiotalar and subtalar joints, as well as 

the posterior tibial and peroneal tendons. 

On May 24, 2012 appellant requested reconsideration. 

Appellant submitted treatment notes from Dr. Alan Mlodzienski, a podiatrist. On 

July 20, 2011 Dr. Mlodzienski noted that appellant continued to recover from an ankle injury. 

He advised that appellant was limited to carrying 15 pounds. Dr. Mlodzienski also indicated that 

standing/walking should be less than one hour per day. In his September 14, 2011 treatment 

notes, he indicated that appellant was status post right ankle sprain. Dr. Mlodzienski also noted 

that appellant’s MRI scan revealed mild synovitis. His October 26, 2011 treatment notes 

included a diagnosis of right ankle peroneal and “PT” tendinitis. In a January 18, 2012 followup report, Dr. Mlodzienski indicated that appellant was being treated for unspecified ankle and 

foot joint derangement (ICD-9 718.97). 

A March 2, 2012 right ankle MRI scan revealed a small ankle and posterior subtalar 

effusion with minimal synovitis. There was also evidence of remote plantar fasciitis. 

Additionally, the MRI scan showed a small os trigonum likely of no clinical significance. 

Appellant also submitted two April 19, 2012 prescription pad notes from Dr. J. Gregory 

Bancroft, D.P.M. One of the notes recommended physical therapy and included a history of 

having sustained a direct kick to the anterior lateral aspect of the right ankle. In his other 
3

April 19, 2012 note, Dr. Bancroft diagnosed instability, right ankle contusion, bone bruise, right 

ankle joint effusion and ligamentous injury/sprain. 

In a June 14, 2012 decision, OWCP found that appellant established fact of injury. 

However, the claim remained in denial status because the medical evidence was found 

insufficient to establish a causal relationship between the diagnosed right ankle condition(s) and 

the April 26, 2011 employment incident. 

Appellant again requested reconsideration on October 25, 2012. 

Appellant submitted an October 11, 2012 report from Dr. Mlodzienski who explained 

that appellant sustained a right ankle injury on April 26, 2011 while assisting another nurse with 

a combative patient. Dr. Mlodzienski noted that the patient kicked appellant. He also noted that 

appellant was seen at the VA hospital where she was diagnosed with an ankle contusion. 

Appellant was subsequently seen by her primary care physician, who ordered an MRI scan and 

referred her to Dr. Mlodzienski, who noted that appellant initially presented with a painful, 

edematous ankle and an MRI scan that showed fluid in the joint. Dr. Mlodzienski immobilized 

the ankle and prescribed Motrin. As time went on the edema subsided, but appellant continued 

to have pain and stiffness. Dr. Mlodzienski stated that he administered a series of two cortisone 

injections and prescribed physical therapy. However, the treatment provided limited relief. A 

follow-up MRI scan showed less fluid in the ankle joint and no other pathology, yet appellant 

remained in pain. She continued to undergo physical therapy and Dr. Mlodzienski recommended 

a neurologic evaluation. Dr. Mlodzienski reiterated that appellant suffered an ankle injury on 

April 26, 2011. 

In a January 23, 2013 decision, OWCP reviewed the merits of appellant’s claim, but 

again denied modification. 

On December 12, 2013 appellant’s counsel requested reconsideration of the January 23, 

2013 decision. In support of the request, he submitted a July 24, 2013 report from 

Dr. Mlodzienski, who indicated that appellant sustained a “right ankle injury on April 26, 2011 

while assisting ... with a combative patient.” Counsel reiterated much of what he previously 

discussed in his October 11, 2012 report. 

By decision dated January 6, 2014, OWCP denied appellant’s request for reconsideration. 

LEGAL PRECEDENT 

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

matter of right.3

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4

 One such limitation is that the application for 

 3

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 
4

reconsideration must be sent within one year of the date of the merit decision for which review is 

sought.5 

A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

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

considered by OWCP.6 When a timely application 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.7

ANALYSIS 

The December 12, 2013 request for reconsideration neither alleged nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Counsel also did not advance 

any relevant legal arguments not previously considered by OWCP. He merely noted that he 

submitted a recent narrative report from Dr. Mlodzienski in support of establishing causal 

relationship. The Board finds that appellant is not entitled to a review of the merits based on the 

first and second requirements under section 10.606(b)(2).8

Appellant’s counsel also failed to submit any “relevant and pertinent new evidence” with 

the December 12, 2013 request for reconsideration. Dr. Mlodzienski’s July 24, 2013 report is 

almost a verbatim recitation of his October 11, 2012 report, which OWCP previously found 

deficient. On reconsideration, OWCP determined that merit review was unwarranted because 

the newly submitted evidence was “cumulative.” Providing additional evidence that repeats or 

duplicates information already in the record does not constitute a basis for reopening a claim.9 

Because appellant’s counsel did not provide any new medical evidence that might arguably 

impact the prior decision, appellant is not entitled to a review of the merits based on the third 

requirement under section 10.606(b)(2).10 Accordingly, OWCP properly declined to reopen 

appellant’s case under 5 U.S.C. § 8128(a). 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s December 12, 2013 request for 

reconsideration. 

 5 Id. at § 10.607(a). 

6 Id. at § 10.606(b)(2). 

7 Id. at §§ 10.607(b), 10.608(b). 

8 Id. at § 10.606(b)(2)(i) and (ii). 

9 James W. Scott, 55 ECAB 606, 608 n.4 (2004). 

10 20 C.F.R. § 10.606(b)(2)(iii). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 24, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board