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. 15-1849 

Issued: February 8, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant, through counsel, filed a timely appeal of an April 27, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision of OWCP, dated August 7, 2013, 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 the claim. 

ISSUE 

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

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

FACTUAL HISTORY 

This case has previously been before the Board. On February 12, 2010 appellant, then a 

38-year-old sales and systems distributor, filed a traumatic injury claim (Form CA-1) alleging on 

 1

 5 U.S.C. § 8101 et seq.
2

February 7, 2010 he “passed out and hit [his] head on equipment.” He claimed head trauma. 

The claim form indicated that appellant’s incident occurred during his regular tour of duty at his 

duty station. On the reverse of the form, appellant’s supervisor stated that the medical 

documentation did not support a work-related injury as appellant had two other claims for the 

same type of incident. Appellant submitted a report dated February 9, 2010 from Dr. Michael 

Baker, a Board-certified neurologist, indicating that appellant had passed out due to syncope or 

dehydration. 

In a letter dated February 24, 2010, OWCP requested additional factual and medical 

information from appellant including what he believed to be the cause of his fall, whether he 

struck an object during his fall and whether there were any witnesses to his fall. 

Appellant responded that he did not have a clear recollection of the duties that he was 

performing at the time of his black out. He remembered spreading mail. Appellant noted, 

“Everyone at work says I get in a confused state minutes before I pass out and start staring at 

things and acting like I’m lost or something.” He further noted that he never remembered what 

happened right before or after he blacked out. Appellant stated that this was the third time in a 

year that he passed out. He stated that his doctors attributed his faints to standing on his feet for 

long periods at work and becoming overheated. Appellant noted that he had borderline high 

blood pressure and had been taking medication for this condition for three years. He claimed 

that the “rumor” was that he hit a pull down rack during his faint, but that there was only one 

witness and he requested that OWCP obtain a statement from his employing establishment. 

Appellant submitted a computerized tomography (CT) scan dated February 8, 2010 

which reflected no acute intracranial abnormalities. 

By decision dated April 2, 2010, OWCP denied appellant’s claim. It found that he had 

not submitted medical evidence establishing a causal relationship between his employment and 

his alleged injury. Appellant requested a review of the written record from OWCP’s Branch of 

Hearings and Review on April 27, 2010. 

In a report dated March 24, 2010, Dr. Harsh Singh, a Board-certified neurologist, noted 

that appellant had passed out three times in the last year and had a history of headaches. He 

provided his findings on physical examination and stated, “At this point, appellant’s events are 

unclear and they do not appear to be epileptic in nature.” 

Appellant submitted additional medical evidence including a note dated April 28, 2010 

from Dr. Jonathan Constantin, an osteopath, indicating that appellant had another episode of 

vasovagal syncope at work and referring to his October 28, 2009 report. In a report dated 

October 28, 2009, Dr. Constantin stated that appellant experienced “fairly classical vasovagal 

syncope which was likely related to prolonged standing.” He recommended that appellant avoid 

prolonged standing. 

On February 8, 2010 Chris Dryden, a coworker, stated that appellant collapsed on the 

floor on that date. He noted that appellant had a very large knot on the back of head. Brandon 

Gamadge, a coworker, reported appellant’s fall. Mr. Dryden then drove appellant home. He 

noted that appellant had a large lump on the back of his head. 
3

In a decision dated August 5, 2010, the hearing representative affirmed OWCP’s April 2, 

2010 decision. 

Upon reconsideration appellant submitted a report from Dr. Gerard M. Gerling, a Boardcertified neurologist. Dr. Gerling examined appellant on September 13, 2010 diagnosing carpal 

tunnel syndrome and migraine headaches. He noted that appellant had lost consciousness four 

times in the past year and diagnosed vasovagal syncope. Dr. Gerling found that appellant had a 

normal neurological examination and reviewed the medical evidence. He noted that appellant’s 

treating physician diagnosed vasovagal syncope related to overheating and standing for too long 

at work. Dr. Gerling disagreed with this assessment. He stated, “There is insufficient evidence 

provided to indicate what [appellant’s] condition is, but there is no evidence provided that 

indicates that he suffered a work-related injury.” Dr. Gerling noted that vasovagal syncope was 

medically considered as a functional disorder rather than an organic illness. 

By decision dated October 18, 2010, OWCP denied appellant’s claim finding that the 

evidence was not sufficient to establish a traumatic injury in the performance of duty on 

February 7, 2010. It stated that the medical evidence was not sufficient to establish that a 

medical condition was diagnosed in connection with the claimed event. 

Appellant informed OWCP on October 27, 2010 that his teeth were dislodged during the 

fall. Appellant, through counsel, requested a telephone hearing on October 29, 2010. He 

testified at the oral hearing on March 21, 2011. Appellant testified that he was working outside 

in 100-degree weather and as he was leaving work he walked by 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. 

In a note dated August 11, 2010, Dr. Constantin stated that appellant sustained a 

traumatic syncopal event while working outside in 104-degree weather. He noted that appellant 

had a syncopal episode in which he lost several teeth and struck his head which he was 

hospitalized and released. Dr. Constantin stated, “This is a 38-year-old with fairly classic 

vasovagal syncope and it seems to be clearly exacerbated by prolonged standing at work. 

[Appellant’s] last episode was his most dramatic and traumatic and occurred in 104 degrees 

temperature with profuse sweating.” 

By decision dated June 28, 2011, the OWCP hearing representative reviewed the medical 

evidence and noted variances between appellant’s description of the employment events. He 

concluded that appellant had blacked out and fallen at work on February 7, 2010, but that the 

medical evidence was not sufficient to establish that appellant’s work affected an underlying 

medical condition on February 7, 2010. 

Appellant appealed to the Board. In a September 5, 2012 decision,2

 the Board found that 

as an unexplained fall occurred while appellant was engaged in activities incidental to his 

employment duties, an injury resulting from the February 7, 2010 fall was compensable. The 

Board found that OWCP properly accepted that he had an unexplained fall on February 7, 2010. 

The Board further found that OWCP properly concluded that appellant had failed to establish 

 2

 Docket No. 11-1826 (issued September 5, 2012). 
4

any medical condition for which compensation is claimed as a result of the February 7, 2010 

employment incident. 

On July 25, 2013 appellant requested reconsideration. In support of his request he 

submitted a report dated May 15, 2013 from Dr. Milton Peavey, a dentist. Dr. Peavey asserted 

that he first examined appellant on August 3, 2010 when appellant reported that he had been in 

an accident at the employing establishment. He noted that he removed a broken tooth and 

provided appellant with a dental bridge. Dr. Peavey opined that although he had not previously 

examined appellant, the injuries were due to his recent fall. 

By decision dated August 7, 2013, OWCP denied modification of its prior decisions 

noting that the evidence regarding appellant’s February 7, 2010 fall did not support that he 

sustained an injury to his teeth or mouth. Appellant appealed to the Board. By decision dated 

March 6, 2014,3

 the Board found that he had not established that his February 7, 2010 fall 

occurred outside, that he struck a picnic table, or that he sustained injuries to his mouth or teeth. 

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

appellant sustained dental injuries from his February 7, 2010 employment incident. 

On March 19, 2014 counsel again requested reconsideration. He argued that appellant 

was not claiming a traumatic injury, but an occupational disease, chronic vasovagal syncope, 

caused by exposure to high temperatures, or by standing at work for long periods. Counsel 

asserted that appellant experienced syncope on October 28, 2009 and February 7 and 

August 3, 2010. He further alleged that appellant sustained dental injuries and a concussion on 

August 3, 2010 not February 7, 2010. Counsel attributed appellant’s syncope to standing for up 

to 10 hours a day and working in temperatures of up to 104 degrees. 

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

consideration of the merits. Appellant appealed to the Board. The Board reviewed this decision 

on October 15, 20144

 and found that OWCP properly declined to reopen his claim for 

consideration of the merits. The Board determined that the arguments presented were not new 

and that it had previously found that appellant had not established a claim for vasovagal syncope. 

By, letter dated October 22, 2014, counsel again requested reconsideration, received on 

November 4, 2014. He submitted a series of reports from Dr. Constantine. On October 21, 2009 

Dr. Constantine reported that appellant had experienced two episodes of syncope in the previous 

five months. He noted that appellant’s position required prolonged standing working shifts of 

8 to 10 hours. Dr. Constantine related that appellant first experienced syncope at the end of a 

10-hour shift and that his second episode also occurred at the end of a long shift. He opined that 

appellant’s history was fairly classic for vasovagal syncope. 

Counsel also resubmitted Dr. Constantine’s October 28, 2009 report and his August 11, 

2010 note. Dr. Constantine completed a treatment note dated October 28, 2009 opining that 

appellant experienced “a fairly classic vasovagal syncope episode after prolonged standing.” He 

 3

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

4

 Docket No. 14-1213 (issued October 15, 2014). 
5

noted that appellant worked 8 to 10 hours a day standing mostly in one position without a lot of 

movement. Dr. Constantine concluded that appellant’s syncope was “clearly work related.” He 

recommended that appellant avoid prolonged standing and stay well hydrated. In a treatment 

report dated April 28, 2010, Dr. Constantine advised that appellant experienced syncope after 

standing for six hours. He encouraged appellant to consider a change of employment or change 

of position in which prolonged standing was not required. 

By decision dated April 27, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It found that as Dr. Constantine’s reports predated his claimed date 

of injury, the reports were irrelevant. 

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.5

 

Section 10.606(b)(3) 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.6 

Section 10.608 of OWCP regulations provide that when a request for reconsideration is timely, 

but does 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.7 Section 10.607(a) of OWCP 

regulations provide that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.8

ANALYSIS 

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

consideration of the merits. 

Appellant, through counsel, filed a timely request for reconsideration. In support of this 

request, he submitted a series of documents from Dr. Constantine dated October 21, 2009 

through April 28, 2010. Two of these documents were duplicative of evidence previously 

reviewed by OWCP, the April 28, 2010 note and the October 28, 2009 report. As these reports 

 5

 5 U.S.C. §§ 8101-8193, 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608. 

8 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(October 2011). 
6

are not new evidence, they are not sufficient to require OWCP to reopen appellant’s claim for 

consideration of the merits.9

In regard to the October 21 and 28, 2009 notes, while not previously of record, are 

cumulative, and repetitive. Dr. Constantine repeats his opinion that appellant’s diagnosis is 

vasovagal syncope due to prolonged standing.10 These reports do not constitute relevant and 

pertinent new evidence and are not sufficient to require OWCP to reopen his claim for 

consideration of the merits. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration on 

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

ORDER 

IT IS HEREBY ORDERED THAT the April 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 8, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case record 

has no evidentiary value and does not constitute a basis for reopening a case). 

10 See id.; J.S., Docket No. 15-623 (issued November 25, 2015).