United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.K., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINSTRATION, 

Westbury, NY, Employer 

__________________________________________ 

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Docket No. 16-0813 

Issued: July 20, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 14, 2016 appellant filed a timely appeal from a September 29, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed between the last merit decision of OWCP dated March 30, 2015 to 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 denied appellant’s request for further merit review 

of his claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that his attending physician’s report is sufficient to 

establish the causal relationship between his emotional condition and an accepted work incident. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 17, 2014 appellant, then 36-year-old air traffic control specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he experienced mental trauma due to a loss of 

separation on that date. He stopped work on the date of injury. 

In an August 29, 2014 letter, OWCP advised appellant of the deficiencies of his claim 

and afforded him 30 days to submit additional evidence and respond to its inquiries. 

In an undated statement, appellant related that on August 17, 2014 he was sitting at his 

radar scope working Newark arrival aircraft. He had several aircraft on his frequency and under 

his control while also experiencing problems with his equipment. Appellant became distracted 

by the equipment problems and coordination that was taking place behind him. He did not 

notice that two aircraft under his control were getting too close to each other. When a conflict 

alert activated, appellant realized that separation was lost between both aircraft. He immediately 

reestablished standard separation while continuing to work several other aircraft on his 

frequency. Appellant stated that this incident left him feeling very anxious, stressed, and 

mentally unable to properly preform his air traffic controller duties. 

In an August 18, 2014 duty status report (Form CA-17), Dr. Bruce S. Herman, Ph.D., an 

attending clinical psychologist, noted August 17, 2014 as the date of injury and a history of 

injury that appellant had a loss of separation. He diagnosed unspecified acute reaction to stress 

due to the injury. Dr. Herman advised that appellant was unable to perform his regular work 

duties. 

In a September 30, 2014 decision, OWCP accepted that the August 17, 2014 incident 

occurred as alleged. However, it denied appellant’s claim, finding that the medical evidence of 

record did not contain a rationalized medical opinion to establish a causal relationship between 

his emotional condition and the accepted employment incident. 

Subsequently, OWCP received an authorization for examination and/or treatment (Form 

CA-16) that was signed and issued by the employing establishment on August 17, 2014. 

On January 14, 2015 appellant requested reconsideration. 

In an August 18, 2014 narrative report and September 29, 2014 attending physician’s 

report, Dr. Herman noted a history of the August 17, 2014 employment incident, provided 

examination findings, reiterated his diagnosis of unspecified acute reaction to stress, and 

addressed appellant’s work capacity. In the August 18, 2014 report, he noted that appellant 

attributed his emotional condition, difficulty with sleeping, and inability to work to the accepted 

work incident. In the September 29, 2014 form report, Dr. Herman indicated with an affirmative 

mark that his diagnosis was caused or aggravated by the August 17, 2014 employment incident. 

He concluded that appellant could return to his regular work. 

By decision dated March 30, 2015, OWCP denied modification of the September 30, 

2014 decision. It found that the medical evidence submitted did not contain a rationalized 

medical opinion to establish a causal relationship between appellant’s emotional condition and 

the accepted August 17, 2014 work incident. 
3

In an August 15, 2015 letter and August 23, 2015 appeal request form, received on 

August 27, 2015 appellant requested reconsideration of the March 30, 2015 decision. In his 

August 15, 2015 letter, he contended that Dr. Herman’s August 18 and September 29, 2014 

reports established a causal relationship between his emotional condition and the accepted 

August 17, 2014 work incident. 

Appellant resubmitted the second page of Dr. Herman’s August 18, 2014 report. 

In a September 29, 2015 decision, OWCP denied further merit review of appellant’s 

claim. It found that he had not submitted a relevant legal argument and that the medical 

evidence submitted was duplicative and previously considered. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulation provide that 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.3

 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.4 Section 10.608(b) of the implementing regulations states that any 

application for review that does not meet at least one of the requirements listed in 20 C.F.R. 

§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.5

ANALYSIS 

Appellant disagreed with OWCP’s denial of his traumatic injury claim. He requested 

reconsideration and asserted that his emotional condition was causally related to the accepted 

August 17, 2014 employment-related incident. The underlying issue in this case is whether 

appellant submitted medical evidence establishing that his emotional condition is causally related 

to the accepted August 17, 2014 work incident. That is a medical issue which must be addressed 

by relevant, new medical evidence.6 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered or submit relevant an pertinent new evidence not previously 

considered by OWCP. In his August 15, 2015 request for reconsideration and on appeal 

 2 Id. Under section 8128 of FECA, the 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). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

6 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

appellant asserted that Dr. Herman’s August 18 and September 29, 2014 reports were sufficient 

to establish the causal relationship between his emotional condition and the accepted work 

incident. The Board finds that appellant’s assertion does not constitute medical evidence as he is 

a lay person and is not competent to render a medical opinion.7

Appellant also resubmitted page two of Dr. Herman’s August 18, 2014 report. This 

report was previously of record. The Board has held that evidence which repeats or duplicates 

evidence already in the case record, however, has no evidentiary value and does not constitute a 

basis for reopening a case.8

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

The Board notes that the employing establishment executed a Form CA-16 on August 17, 

2014 authorizing medical treatment. The Board has held that where an employing establishment 

properly executes a Form CA-16, which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, it creates a contractual obligation, which 

does not involve the employee directly, to pay the cost of the examination or treatment regardless 

of the action taken on the claim.9 Although OWCP denied appellant’s claim for an injury, it did 

not address whether he is entitled to reimbursement of medical expenses pursuant to the Form 

CA-16. The Board finds that, upon return of the case record, this matter should be addressed. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

of his claim pursuant to 5 U.S.C. § 8128(a). 

 7 James A. Long, 40 ECAB 538, 542 (1989). 

8 See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005). 

9 See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300 and 10.304. 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board