United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.E., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, West Haven, CT, Employer 

__________________________________________ 

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Docket No. 14-1864 

Issued: January 7, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 22, 2014 appellant filed a timely appeal from a February 25, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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 denied appellant’s December 2, 2013 request for 

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

FACTUAL HISTORY 

On March 15, 2006 appellant, then a 40-year-old nurse, filed a traumatic injury claim 

alleging that on March 14, 2006 she experienced bilateral knee pain as a result of slipping on wet 

 1

 5 U.S.C. § 8101 et seq.
2

alcohol wipes on the floor and falling down. She stopped work on March 16, 2006. OWCP 

accepted appellant’s claim for acute back strain, hip sprain, and bilateral knee contusions and 

paid wage-loss compensation benefits. On April 30, 2006 appellant was authorized to return to 

full-time light duty. She continued to undergo medical treatment for lower back and left leg pain 

with intermittent periods of disability. 

On August 28, 2013 appellant requested disability compensation for the period August 10 

to 16, 2013. She submitted hospital preoperative evaluation records dated May 8, 2011 and 

February 21, 2013 and an operative note for a lumbar steroid injection. 

In an August 30, 2013 work restriction note, Dr. John Marino, Board-certified in physical 

medicine and rehabilitation, stated that appellant had put in papers for reasonable 

accommodation because her request to use a shuttle ride was denied. He recommended that she 

not work until September 16, 2013. 

In a letter dated September 19, 2013, OWCP advised appellant that the evidence 

submitted indicated that she may have sustained a recurrence of disability. It requested that she 

submit a Form CA-2a if she believed her disability beginning August 10, 2013 was causally 

related to her March 14, 2006 employment injury and to submit medical evidence to establish 

that her inability to work was causally related to her accepted conditions. 

Appellant submitted hospital records dated February 21, 2013 which indicated that she 

received a lumbar steroid injection for left lumbar radiculopathy. 

In a decision dated October 25, 2013, OWCP denied appellant’s claim finding 

insufficient evidence to establish a recurrence of disability due to a change or worsening of her 

accepted March 14, 2006 conditions. 

In an appeal request form dated November 20, 2013 and received by OWCP on 

December 2, 2013, appellant requested reconsideration. She resubmitted medical reports dated 

January 7 and 20, 2009 from Dr. Isaac Cohen, Board-certified in physical medicine and 

rehabilitation, regarding treatment for left leg weakness and chronic low back pain and the 

February 21, 2013 hospital records. Appellant also submitted a January 30, 2014 anesthesia 

record. 

In various reports by Dr. Marino dated October 14 and December 31, 2013, he related his 

treatment for appellant’s ongoing lower back and left leg pain. Upon examination, he observed 

good strength in her legs and increased pain in her lower back and lumbar flexion. Dr. Marino 

also noted some pain with passive rotation of the left hip. He reported that an x-ray dated 

December 31, 2013 demonstrated well-preserved joint space with no joint margin osteophytes or 

fractures. Dr. Marino recommended that appellant continue with lumbar injections. 

By decision dated February 25, 2014, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant further merit 

review under 5 U.S.C. § 8128(a). It determined that the medical evidence submitted was not 

relevant to the issue or repetitive of evidence previously submitted. 
3

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.2

 OWCP regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his or her right through a request to the district Office.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or 

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

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

considered by OWCP.4 

A request for reconsideration must also be submitted within one year of the date of 

OWCP’s decision for which review is sought.5

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.6 If the request is timely but fails to 

meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.7

ANALYSIS 

OWCP accepted that on March 15, 2006 appellant sustained back strain, hip sprain, and 

bilateral knee contusions in the performance of duty. Appellant stopped work and returned to 

full-time limited duty in April 2006. On August 28, 2013 she requested disability compensation 

for the period August 10 to 16, 2013. Appellant submitted medical records including hospital 

records dated May 8, 2011 and February 21, 2013 and various reports by Dr. Marino. By 

decision dated October 25, 2013, OWCP denied appellant’s claim finding insufficient evidence 

to establish that she sustained a recurrence of disability due to a change or worsening of her 

accepted March 14, 2006 conditions. 

Appellant requested reconsideration by appeal request form received by OWCP on 

December 2, 2013. In a decision dated February 25, 2014, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant further merit 

 2

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

3

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

4 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued 

December 9, 2008). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

7 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
4

review under 5 U.S.C. § 8128(a). The only issue for determination before the Board is whether 

OWCP properly denied appellant’s request for reconsideration. 

Along with her request for reconsideration, appellant resubmitted medical reports dated 

January 7 and 20, 2009 from Dr. Cohen regarding treatment for left leg weakness and chronic 

low back pain and the February 21, 2013 hospital records. The submission of evidence which 

repeats or duplicates evidence already in the case record does not constitute a basis for reopening 

a case.8

 These reports, therefore, are insufficient to warrant merit review of appellant’s claim. 

Appellant also submitted various medical documents including a January 30, 2014 

anesthesia record and reports by Dr. Marino dated October 14 and December 31, 2013. 

Dr. Marino treated appellant for ongoing lower back and left leg pain. Upon examination, he 

observed good strength in her legs and increased pain in her lower back and lumbar flexion. 

Dr. Marino also noted some pain with passive rotation of the left hip. He recommended that 

appellant continue with lumbar injections. Although these medical documents constitute new 

evidence, they do not provide any new or pertinent information regarding whether appellant was 

unable to work beginning August 10, 2013 as a result of her accepted conditions. The Board 

notes that the submission of evidence that does not address the particular issue involved does not 

constitute a basis for reopening a case.9

 Accordingly, this evidence does not constitute a basis 

for further merit review of appellant’s claim. 

On appeal appellant alleges that her original back and left leg conditions did not 

completely heal due to the constant aggravations of her job. She states that she made a mistake 

in not sending in documents with her reconsideration request and noted that she was now 

submitting those additional documents. The Board’s jurisdiction, however, is limited to 

evidence that was before OWCP at the time it issued its final merit decision. Accordingly, it 

may not consider this evidence for the first time on appeal.10 Appellant may submit that 

evidence to OWCP along with a request for reconsideration. 

Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(2). She did not submit 

any evidence along with her request for reconsideration to show that OWCP erroneously applied 

or interpreted a specific point of law, or advances a relevant legal argument not previously 

considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen 

the case for review of the merits. 

The Board finds that appellant failed to submit relevant and pertinent new evidence, a 

relevant legal argument not previously considered by OWCP, or evidence or argument which 

shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP 

properly refused to reopen her case for further consideration of the merits of her claim under 

5 U.S.C. § 8128. 

 8 E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007). 

9 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

10 See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s December 2, 2013 request for 

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

ORDER 

IT IS HEREBY ORDERED THAT the February 25, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 7, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board