United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.E., Appellant 

and 

DEPARMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY HOSPITAL, Tampa, FL, 

Employer 

__________________________________________ 

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Docket No. 14-1047 

Issued: October 9, 2014 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 1, 2014 appellant, through his attorney, filed a timely appeal of a February 21, 

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

review. Because over 180 days elapsed from insurance of the most recent merit decision on 

April 30, 2013 to the filing of this appeal, 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) and 501.3. 

ISSUE 

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

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

On appeal, counsel stated that Thea Brandon witnessed appellant fall at the time of the 

alleged incident. He argued that her statement provided a basis for fact of injury and supported 

 1

 5 U.S.C. § 8101 et seq. 
2

appellant’s position that he sustained an injury on the job and shifted the burden of proof to 

OWCP to establish that the injury did not in fact happen. Counsel also argued that the January 9, 

2014 report from an attending orthopedic surgeon, constituted relevant new evidence requiring 

OWCP to reopen appellant’s claim for consideration of the merits. 

FACTUAL HISTORY 

On September 26, 2012 appellant, then a 43-year-old mail clerk, filed a traumatic injury 

claim alleging that on September 7, 2012 Francis Cordero, a mailroom supervisor, kicked him 

unexpectedly in the back of his right leg, which caused injury to his lower back. On the reverse 

of the form, appellant’s supervisor, Steven Hellmers, stated that an investigation did not identify 

any witnesses to confirm that the incident happened as alleged. In a letter dated October 4, 2012, 

OWCP requested additional factual and medical evidence supporting that the incident occurred 

as alleged and that a medical condition resulted from the alleged employment event. It allowed 

30 days for a response. 

Mr. Hellmers submitted a September 14, 2012 report noting that appellant attempted to 

file assault and battery charges against Mr. Cordero on September 13, 2012 as the result of 

incident of September 7, 2012. Appellant reported to the police that Mr. Cordero “mule kicked” 

him on Friday September 7, 2012 at 1:50 pm and that he sought treatment at the emergency room 

after his workday. Mr. Cordero denied any incident that would result in injury to appellant. 

Appellant also alleged that Mr. Cordero struck him with a rolled stack of paper on September 12, 

2012 while training him on a piece of equipment. Mr. Cordero also denied this incident. He 

stated that, the allegations had no validity and, if the events occurred at all, there was no 

intentional or violent harm but rather playful intent. Five possible witnesses were interviewed 

and denied observing either of the incidents alleged by appellant. Appellant stated to 

Mr. Hellmers on September 7, 2012 that Mr. Cordero kicked him twice to the knee area making 

him awkwardly catch himself from falling and resulting in pain in his low back. Mr. Hellmers 

believed that Mr. Cordero was “goofing around” and did not intend to cause him harm. He 

verbally counseled Mr. Cordero to refrain from physical contact with any employee. 

Appellant stated that there were witnesses to the kicking incident, but that his coworkers 

refused to come forward. He reported that Mr. Cordero kicked him twice on September 7, 2012 

landing the second kick to the back of his right knee or thigh. Appellant had to catch himself to 

prevent a fall and felt pain in his lower back and thigh. He sought medical treatment. On 

September 12, 2012 Mr. Cordero struck appellant with a rolled stack of papers three or four 

times in front of a trainer. Appellant stated that Mr. Cordero was acting playfully and not 

fighting him but that he felt that, like sarcasm, these events were underhanded acts of violent 

intent. On September 27, 2012 he repeated his allegations and noted that a repairman was 

present when Mr. Cordero kicked him, but denied witnessing the event. 

Appellant submitted a statement from Omoro K. Williams, a coworker, noting that 

Mr. Cordero was initially employed as a work-study student and that he liked to touch people in 

unexpected ways such as a pat on the back or shoulder. Mr. Williams stated that Mr. Cordero 

had punched him in the side of his stomach and patted him on the back. He noted that 

Mr. Cordero meant no harm, but that these actions aggravated a back injury. Mr. Williams stated 

that when Mr. Cordero returned as a supervisor he kicked a mail clerk as a joke. 
3

In a nurse’s note dated September 7, 2012, appellant reported right leg pain following a 

kick. He stated that his supervisor kicked him while playing and joking around. Appellant again 

sought medical treatment on September 8, 2012. Dr. Samy F. Bishai completed a form report on 

September 25, 2012 and diagnosed lumbosacral strain. He examined on October 5, 2012 and 

noted an increase in pain. Dr. Bishai found that appellant was totally disabled pending further 

testing. He completed a duty status report on October 24, 2012 and diagnosed lumbosacral strain 

with muscle spasm and reduced range of motion. 

Mr. Cordero completed a statement on October 25, 2012 and denied doing anything to 

harm anyone on September 7, 2012. He stated that he treated all employees with dignity and 

respect. 

Appellant submitted an additional statement on October 29, 2012 reviewing the 

submitted evidence and describing his symptoms. He noted that he had a previous servicerelated injury to his lower back, knees and legs. 

By decision dated November 8, 2012, OWCP denied appellant’s claim on the grounds 

that he failed to submit the necessary factual evidence to establish that his employment incident 

occurred as alleged. It noted that there were inconsistencies in the factual record which cast 

doubt upon whether the employment incident occurred as alleged. 

Appellant requested an oral hearing before an OWCP hearing representative on 

November 13, 2012. 

In a narrative report dated September 25, 2012, Dr. Bishai noted that appellant stated that 

his supervisor had kicked him in the back of the leg resulting in injury to his back. He diagnosed 

dorsolumbar strain, herniated lumbar disc and bilateral radiculopathy in the lower extremities. 

Dr. Bishai diagnosed herniated lumbar disc with radiculopathy on October 24, 2012. He 

completed a narrative report on December 4, 2012 and repeated his diagnoses and opined that 

appellant was totally disabled. Dr. Bishai stated that appellant was experiencing an aggravation 

of his preexisting back condition, which initially developed in the military. He concluded, “[I]t 

is my opinion that [appellant’s] injuries of September 7, 2012 when he was kicked in the leg and 

back caused an injury and aggravation of a preexisting condition of his back and it is a 

permanent aggravation of this condition.” 

Appellant testified at the oral hearing on February 14, 2013. He stated that he was 

talking with Mr. Cordero, who kicked behind him and then struck him with a second kick. 

Appellant lost his balance and landed in a chair to keep from falling to the floor. He noted that 

he had problems with balance due to his service-related disability. Appellant stated that he 

caught himself with his arms leaning into the chair. The incident resulted in back and leg pain. 

Appellant stopped work and did not return. 

During the oral hearing, counsel read from February 7, 2013 statement from 

Ms. Brandon, a coworker, who reported seeing appellant falling backward. Ms. Brandon stated 

that appellant tried to grab a chair and table to break his fall. She stated that she did not see 

Mr. Cordero kick appellant. Mr. Cordero gave her a ride home and stated that he and appellant 
4

played like that. Ms. Brandon admonished Mr. Cordero not to put his feet on people even 

playing. 

Following the oral hearing appellant submitted additional reports from Dr. Bishai dated 

February 27 and March 6, 2013. Dr. Bishai noted appellant’s complaints of neck pain and pain 

in his lower back. He continued to support appellant’s disability for work. 

Mr. Hellmers reviewed the hearing transcript on March 18, 2013 and stated that he 

interviewed Ms. Brandon during the initial investigation and she did not state that she had 

witnessed anything related to appellant’s traumatic event. He disputed her allegation that she 

reported appellant’s stumble to him. 

By decision dated April 30, 2013, the hearing representative found that the case record 

did not contain any witness statements supporting appellant’s version of events. She noted that 

the claim form was filed two weeks after the alleged incident and that she did not find 

appellant’s testimony to be credible. The hearing representative stated that Mr. Cordero denied 

that the incident occurred and that the medical records failed to provide a reasoned opinion 

supporting that the diagnosed degenerative back condition and herniated disc were related to 

appellant’s alleged employment incident. She found that due to the late reporting and lack of 

contemporaneous medical evidence that the incident did not occur as alleged. 

Appellant submitted additional reports from Dr. Bishai dated April 11 and May 16, 2013, 

who reiterated the findings and conclusions together with prior reports of record. He submitted a 

series of reports dated January 4 to December 11, 2013, from Dr. Claude Barosy, a family 

practitioner, who listed a date of injury of September 7, 2012, provided findings on physical 

examination and diagnosed lumbar sprain, lumbar disc syndrome and bilateral radiculopathy. 

Dr. Barosy found herniated discs at L3-4 and L5-S1. He recommended physical therapy. 

Appellant requested reconsideration on February 3, 2014 and stated that he was 

submitting new medical evidence from Dr. Bishai. He asked that OWCP review Mr. Williams’ 

statement, the February 7, 2013 statement from Ms. Brandon and a March 29, 2013 statement 

from local union president Donald Parent. Counsel contended that Ms. Brandon saw appellant 

fall, although she did not see the actual horseplay that he alleged caused the fall. Her statement 

was, therefore, significant. On March 29, 2013 Mr. Parent discussed appellant’s claim with 

another employee who informed him that Mr. Cordero had kicked appellant and that 

Mr. Williams had witnessed this event. 

In a report dated January 9, 2014, Dr. Bishai noted that appellant had preexisting back 

problems related to his military service. He stated that this condition did not include radicular 

symptoms. Dr. Bishai reported appellant’s statements that on September 7, 2012 he was kicked 

in the leg by a coworker during horseplay, which caused him to lose his balance and break his 

fall by catching himself on a chair. Appellant reported that he immediately felt pain in his low 

back. Dr. Bishai stated, “[I]t is my opinion that [appellant] suffered lumbar disc herniation with 

bilateral lower extremity radiculopathy as a result of the incident at work on September 7, 2012.” 
5

In a decision dated February 21, 2014, OWCP denied appellant’s request for 

reconsideration of the merits. It found that he failed to submit new and relevant evidence or 

argument in support of his request. 

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.2

 

Section 10.606(b) of the Code of Federal Regulations provides 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.3 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.4

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.5

ANALYSIS 

OWCP denied appellant’s traumatic injury claim on the grounds that he failed to provide 

sufficient factual evidence to establish that he was kicked by his supervisor in an act of horseplay 

on September 7, 2012 at the time, place and in the manner alleged. As noted the Board does not 

have jurisdiction over the merits of the claim. 

Appellant submitted a new statement dated March 29, 2013 from Mr. Parent discussing 

whether Mr. Cordero had kicked one of his coworkers. This statement is not relevant to 

appellant’s claim. The issue is whether he submitted sufficient factual evidence that Mr. Cordero 

kicked him on September 7, 2012, not whether Mr. Cordero had engaged in horseplay with other 

individuals. As this statement is not relevant to the underlying issue in appellant’s claim it does 

not require OWCP to reopen his claim for consideration of the merits. 

Appellant also submitted medical evidence. He submitted a series of medical reports 

from Drs. Bishai and Barosy. These reports are not relevant to the issue for which his claim was 

denied, whether the factual evidence in the record supported that the employment incident 

occurred as alleged. Appellant has stated that Mr. Cordero kicked him on September 7, 2012 

 2

 5 U.S.C. §§ 8101-8193, 8128(a). 

3

 20 C.F.R. § 10.606. 

4 Id. at § 10.608. 

5 R.P., Docket No. 14-413 (issued July 8, 2014). 
6

causing him to stumble and catch himself on a chair injuring his back. While Mr. Bishai 

describes appellant’s version of events in his January 9, 2014 report, he was not a witness and 

cannot provide first hand affirmation of the event. He also provided similar statements in reports 

previously considered by OWCP. The remainder of the new medical evidence does not provide 

a description of the alleged employment incident and is not relevant to the reason that appellant’s 

claim was denied. Therefore, the medical evidence is not sufficient to require OWCP to reopen 

his claim for consideration of the merits. 

Appellant also resubmitted factual and medical evidence in support of his request for 

reconsideration. As the statements from Mr. Williams and Ms. Brandon and medical evidence 

from Dr. Bishai was reviewed by the hearing representative and OWCP in prior decisions, this 

does not constitute relevant new evidence and is not sufficient to require OWCP to reopen 

appellant’s claim for consideration of the merits. 

On appeal, counsel argued that Ms. Brandon witnessed appellant stumble at the time of 

the incident and her statement provided a basis for finding fact of injury. This contention was 

not raised previously to OWCP.6

As appellant has neither demonstrated that, a point of law was erroneously applied or 

interpreted nor advanced a relevant legal argument not previously considered nor submitted 

pertinent new and relevant evidence not previously considered, OWCP did not abuse its 

discretion in denying further consideration of the merits of his claim. 

CONCLUSION 

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

the merits on February 21, 2014. 

 6

 20 C.F.R. §§ 501.2(c) and 501.3. 
7

ORDER 

IT IS HEREBY ORDERED THAT the February 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 9, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board