United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.K., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Phoenix, AZ, Employer 

__________________________________________ 

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Docket No. 14-1722 

Issued: September 29, 2015 

Appearances: Case Submitted on the Record

Darrell Kaarup, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 4, 2014 appellant, through his representative, filed a timely appeal from the 

February 28, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The last merit decision in this case was issued by OWCP on November 29, 2012. As 

more than 180 days have elapsed between the last merit decision by OWCP and the filing of this 

appeal, 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 this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for merit 

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

On appeal, appellant, through his representative, contends that OWCP abused its 

discretion when it unjustly refused to review the merits of his case in its February 28, 2014 

 1

 5 U.S.C. § 8101 et seq. 
2

decision. He argues that OWCP erroneously applied or interpreted many points of law, that he 

advanced many points of law and facts not previously considered by OWCP, and that he 

submitted relevant and pertinent new evidence not previously considered by OWCP. 

Appellant’s representative argues that the record is in disarray and that OWCP could not have 

properly reviewed the reconsideration request. His representative also makes various arguments 

concerning the merits of the claim. 

FACTUAL HISTORY 

On September 14, 2005 appellant, then a 27-year-old air traffic controller, filed a 

traumatic injury claim, Form CA-1, alleging that on September 2, 2005 he suffered internal 

bruising on his right lower back while at work. In a separate statement dated September 3, 2005, 

appellant alleged that during a period of very heavy air traffic, his supervisor yelled at him and 

began angrily and forcibly jabbing him in his right lower back. On February 6, 2006 OWCP 

accepted appellant’s claim for aggravated back strain.2

On November 18, 2010 OWCP terminated appellant’s compensation and medical 

benefits effective that date with regard to the injury of September 2, 2005. In the same decision, 

it denied his claim for a recurrence and denied his claim for an emotional condition due to 

various incidents at work. 

On November 7, 2011 appellant, through his representative, requested reconsideration. 

Appellant’s representative argued, inter alia, that the imaging of his documents was incomplete, 

that OWCP unlawfully withheld documents, that it ignored employment-related factors, and that 

the well-reasoned medical evidence by appellant’s treating physicians substantiate that 

appellant’s physical and emotional conditions were caused by injuries sustained in the 

performance duty. 

In a June 26, 2012 response to a congressional inquiry, OWCP advised that appellant 

should submit any document that he did not feel was included in the case record. Documents 

previously submitted were imaged, and a CD of the case record was sent to appellant on 

May 15, 2012. It noted that appellant had another case, OWCP File No. xxxxxx346, and that the 

documents in that case were imaged in a separate record. 

By decision dated November 29, 2012, OWCP determined that the weight of the medical 

evidence failed to establish that appellant had any medical condition of the low back, whether it 

was chronic low back syndrome, peripheral neuropathy, or physical pain injury. In reaching this 

conclusion, it modified the previous decision in that it found that the previously accepted low 

 2

 On August 14, 2006 appellant filed a separate traumatic injury claim for an emotional condition. At hisrequest, 

by letter dated October 6, 2006, OWCP converted this claim to an occupational disease claim. In a decision dated 

February 20, 2007, it denied appellant’s claim, and in a December 13, 2007 decision, OWCP denied modification of 

that decision. In a decision dated June 23, 2009, the Board affirmed OWCP’s denial of the claim. The Board found 

that appellant was off-premises at the time of the August 10, 2006 alleged incident. Appellant also attributed his 

emotional condition to incidents occurring on April 21 and May 5, 2006, but the Board found that these were not 

compensable factors of federal employment. The Board also noted that to the extent that appellant contended that 

his emotional condition was related to a September 2, 2005 incident, he may pursue an emotional condition claim 

under that claim number. Docket No. 08-849 (issued June 23, 2009). 
3

back injury of September 2, 2005 was not established, since appellant’s chiropractor never took 

any x-rays, and therefore his reports lacked probative value under FECA. OWCP further found 

that the medical evidence did not establish that the event of September 2, 2005 was the 

proximate cause of appellant’s post-traumatic stress disorder (PTSD), stress, anxiety, or 

depression. 

On November 18, 2013 appellant, through his representative, requested reconsideration. 

In a 1,551 page brief, appellant’s representative made a number of arguments, including that 

OWCP did not consider thousands of pages of documents, contending that they were not 

stamped by the appropriate received date. He further argued that the medical evidence 

established appellant’s claim, contending that the opinions solicited by OWCP were deficient 

and improperly obtained, that OWCP asked the physicians inappropriate questions, that his 

chiropractor’s opinion constituted medical evidence under Arizona law, that OWCP did not 

address all the medical evidence, and that the reports of his physicians established an 

employment-related emotional and physical disability. The representative contended that 

appellant sustained an emotional condition as appellant was exposed to prolonged psychological 

emotional and administrative abuse by the employing establishment. 

Appellant’s representative also argued in his request for reconsideration that OWCP did 

not properly develop appellant’s claims for recurrence. He further argued that decisions by the 

Social Security Administration (SSA), the Office of Personnel Management (OPM), and a 

private insurance company support his claim, that OWCP did not properly follow the Board’s 

prior decision, and that it failed to follow the directives of its prior decision. 

Appellant’s representative submitted a voluminous number of documents in support of 

his request for reconsideration, which included the resubmission of medical reports from his 

chiropractor and relative to his psychiatric condition, copies of collective bargaining agreements, 

articles concerning the firing of air traffic controllers in the 1980s, and a supervisor’s divorce 

decree. 

 In a February 28, 2014 decision, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case. It determined that the evidence did not support that it 

erroneously applied or interpreted a specific point of law, nor did the evidence contain relevant 

legal arguments not previously considered by OWCP. OWCP found that the arguments raised in 

the request for reconsideration had previously been addressed or were not relevant to the issues 

under consideration. It also found that no new and relevant evidence had been submitted. 

OWCP determined that the evidence submitted in support of reconsideration was repetitious and 

consisted of documents that were previously in the record. OWCP further found that the 

evidence was also irrelevant or immaterial. It noted that the prior reconsideration decision 

clearly reviewed and cited the evidence of record and provided a detailed discussion of the 

merits of the evidence. 
4

LEGAL PRECEDENT 

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

regulations provide that the evidence or argument submitted by 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 its decision 

denying or terminating a benefit, a claimant’s application for review must be received 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 Board finds that OWCP properly denied further merit review of appellant’s claim. 

Although appellant, through his representative, contends that he submitted pertinent new 

and relevant evidence and argument on reconsideration, the Board finds that his submissions do 

not satisfy this requirement. In support of his reconsideration request, appellant’s representative 

submitted numerous documents including reports from his chiropractor, treatment notes for his 

emotional condition, correspondence, pay records, and prior decisions, all previously of record. 

Although appellant contends that the documents constituted pertinent new and relevant evidence, 

most of the evidence submitted show the original OWCP stamp indicating the date that the 

document was previously received. As the Board has held, evidence that is repetitive and 

duplicative of evidence previously of record and reviewed by OWCP is insufficient to warrant 

further merit review.7

The remaining documents have no relevance to the case, including copies of collective 

bargaining agreements, articles concerning the firing of air traffic controllers in the 1980s, and 

copies of a supervisor’s divorce papers. The submission of evidence or argument which does not 

address the particular issue involved does not constitute a basis for reopening a case.8

Appellant raises issues with regard to his emotional disease claim. However, that case 

has already been considered by the Board in its June 23, 2009 decision,9

 and appellant cannot 

 3 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(b). 

7 See A.L., Docket No. 1840 (issued January 20, 2015); D.K., 59 ECAB 141 (2007). 

8 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

9 See supra note 2. 
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now relitigate that this emotional condition case by attempting to draw it into the current one. 

With respect to the findings made by the Board’s June 23, 2009 decision those matters are res 

judicata absent any further review by OWCP under section 8128 of FECA.10 It has already been 

determined that appellant did not establish an emotional condition with regard to the incidents 

adjudicated in OWCP File No. xxxxxx821. OWCP properly refused to reevaluate them when 

addressing this case involving the September 2, 2005 traumatic injury.11

Appellant made arguments with regard to the merits of this case, including the weight 

given certain items of medical evidence that appellant’s chiropractor was to be treated as a 

physician under FECA, that various alleged incidents caused an emotional condition, that no 

other event could have caused appellant’s medical and physical conditions, and that numerous 

people made fraudulent statements. These arguments were previously raised before OWCP and 

are insufficient to warrant merit review.12

Appellant’s request for reconsideration also makes additional arguments that are not 

relevant to his claim for a traumatic injury sustained on September 2, 2005. Evidence or 

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

reopening a case.13

Finally, appellant contends in his request for reconsideration that decisions by SSA, 

OPM, and a private insurance company with regard to his disability status are relevant to 

appellant’s claim before OWCP. This is not the case. The Board has long held that decisions 

made by other federal agencies pursuant to different statutes that have varying standards for 

establishing disability and eligibility for benefits are not dispositive of FECA proceedings.14 The 

Board is likewise not bound by decisions of a private insurance company to grant appellant 

benefits. 

On appeal appellant’s representative once again raises the argument that the record below 

is incomplete. Appellant’s representative asks this Board to indicate which record it intends to 

use in making its decision and to indicate the number of pages in the record. Appellant 

submitted his own discs to the Board with what he contended was the complete record in his 

case. However, the Board obtained a copy of the official record from OWCP through imaging. 

The case record on appeal is the official record of OWCP.15 This record was made available to 

appellant. The official record, as presented by OWCP to the Board, constitutes the record in this 

case. 

 10 M.H., Docket No. 15-0893 (issued July 20, 2015); see also Robert G. Burns, 57 ECAB 657 (2006). 

11 The primary difference between a traumatic injury and an occupational disease is that a traumatic injury must 

occur within a single work shift while an occupational disease occurs over more than one work shift. 20 C.F.R. 

§§ 10.5(ee), 10.5(q). 

12 See G.G., Docket No. 12-1119 (issued March 19, 2013); W.B., Docket No. 11-239 (issued January 27, 2012). 

13 Supra note 8. 

14 J.S., Docket No. 13-1678 (issued April 3, 2014). 

15 20 C.F.R. § 501.4(b). 
6

Appellant did not establish that OWCP erroneously interpreted a specific point of law, 

advance a relevant legal argument not previously considered, or constitute relevant and pertinent 

new evidence not previously considered by OWCP. As appellant did not meet any of the 

regulatory requirements of 20 C.F.R. § 10.606(6)(3), the Board finds that OWCP properly 

declined to reopen his claim for further merit review.16

CONCLUSION 

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

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

ORDER 

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

Compensation Programs dated February 28, 2014 is affirmed. 

Issued: September 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010).